Protect Your Clients from Illegal Court-Appointed Attorney Fees
by: Dsherbohug • June 20, 2012 • no comments
I am an appellate attorney with the Office of Public Defense Services (OPDS). Inspired by this year's annual conference, I approached Alex and volunteered to write a series of posts on winning appellate issues that frequently go unpreserved. First up is court-appointed attorney fees:
A court exceeds its sentencing authority if it orders a defendant to pay court-appointed attorney fees without first determining, based on evidence in the record, that the defendant "is or may be able to pay them." State v. Kanuch, 231 Or App 20, 24-25 (2009). If trial counsel objects on ground that the defendant lacks the resources to pay attorney fees and the record contains no information concerning the defendant's ability to pay, the Court of Appeals will reverse the imposition of attorney fees. Id.
Two statutes authorize the court to impose "a reasonable attorney fee" for counsel appointed to represent the defendant. ORS 161.665(1); ORS 151.505(1). Those statutes further provide, "The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them." ORS 161.665(4); ORS 151.505(3).
The leading cases interpreting those statutes are Bacote v. Johnson, 333 Or 28, 33 (2001) (holding that the trial court erred by imposing attorney fees without first "determin[ing] if the person is, or in the future, may be able to pay costs") and Kanuch, 231 Or App at 24-25 ("The statute plainly states that the court lacks authority to sentence a defendant to pay costs unless it has determined that the defendant 'is or may be able to pay them.'") (Emphasis added). Additionally, the court held that ORS 161.665(4) "unambiguously provides that the trial court cannot impose an obligation to pay attorney fees unless the record demonstrates that the defendant "is or may be able to pay them." Id.at 24 (emphasis added). It further held that the burden is on the prosecution to make that showing on the record. Id.
Regarding preservation, in both Bacote and Kanuch, the appellate courts ultimately concluded that the trial attorneys properly preserved their arguments. In Bacote, petitioner's post-conviction attorney argued:
[COUNSEL]: * * * On behalf of [petitioner] I object to the imposition of the $975.00 in attorney reimbursement fees. The basis for my objection is that there's been no showing that [petitioner] has the ability to pay. There has not even been an inquiry as to whether he has the ability to pay that he-without undue hardship. He is indigent, he has been declared indigent by this Court. Consequently, we believe that he is unable to pay and that it should not be imposed.
The Court of Appeals held that because petitioner did not explicitly ask the trial court to make a determination regarding defendant's ability to pay and did not object to the lack of such a determination, the alleged error was not preserved. Bacote v. Johnson, 169 Or App 44, 46, 7 P3d 729 (2000).
The Supreme Court reversed, stating that the "objection was sufficient to alert the court and defendant to petitioner's claim that the court erred in assessing costs under ORS 151.505 without first determining his ability to pay those costs." Bacote 333 Or at 32 (citing State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (holding party must provide trial court with explanation of objection specific enough to ensure that court can identify alleged error and correct it immediately if correction warranted).
In Kanuch, the court asked the defendant's attorney for the amount of his fees. The attorney replied:
I don't have that amount, and I'm not even sure that I could get that together. *** I think that it's clear from the record that he is indigent, going to be in prison for at least the next 30 years. Upon his release from prison, there would be no ability to pay. I think that's reasonabl[y] foreseeable, and I would ask the Court to impose no Court appointed attorney's fees.
On appeal, defendant argued that the trial court erred in ordering him to pay fees, both because the court failed to make required findings and because there was simply no evidence of his ability to pay them.
The Court of Appeals stated, "While it may be debatable that defendant preserved the former contention, it is not debatable that he preserved the latter." Kanuch, 231 Or App at 23. Thus, an objection stating that defendant has no ability to pay attorney fees is sufficient to preserve the claim that the court cannot impose court-appointed attorney fees absent evidence of the defendant's ability to pay.
Additionally, if evidence came out during trial that permits an inference that defendant may be able to pay attorney fees, at sentencing, counsel should specifically ask the court to make express findings concerning the defendant's ability to pay. See State v. Ashley, 240 Or App 795, 797 (2011) (stating that it would decline to exercise its plain error discretion to review that contention because the court could have made the special findings had defendant requested them). The court distinguished the argument in Ashley-that the court erred by failing to make findings-from the argument in Kanuch-that the court lacked authority to impose attorney fees absent evidence of the defendant's ability to pay. Id. at 800.
Lastly, even if trial counsel neglects to object to the imposition of attorney fees, counsel can always petition the court for remission of any costs associated with court-appointed representation if the defendant is not in "contumacious [stubbornly disobedient] default" and "payment of the amount due will impose manifest hardship on the person ordered to repay or on the immediate family of the person." ORS 151.505(4).
