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In re N.S.R.

Court of Appeals of Oregon

March 5, 2014

In the Matter of the N. S.-R., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent,
v.
N. S.-R., Appellant

Submitted: January 3, 2014.

Linn County Circuit Court. 13CC00500. DeAnn L. Novotny, Judge.

Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.

OPINION

Page 521

[261 Or.App. 553] PER CURIAM.

Appellant seeks reversal of a judgment committing him as a mentally ill person for a period not to exceed 180 days. ORS 426.130. Appellant contends that the trial court committed plain error when it failed to advise him of his right to subpoena witnesses. ORS 426.100(1)(d). The state concedes that the court's failure constitutes plain error. See State v. S. J. F., 247 Ore App 321, 326, 269 P.3d 83 (2011) (a violation of ORS 426.100(1) is plain error). We have held that a violation of ORS 426.100(1) is not harmless where the record does not demonstrate that the " appellant was adequately advised of his rights or that he, in fact, exercised those rights at the hearing." State v. N. S., 201 Ore App 71, 74, 116 P.3d 949 (2005). We agree with and accept the state's concession, and for the reasons stated in S. J. F., we exercise our discretion to correct that error and reverse. 247 Ore App at 325. Because we reverse the judgment on that basis, we do not address appellant's second assignment of error, which is a challenge to the sufficiency of the evidence supporting the commitment order.

Reversed.


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