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In re V.B.

Court of Appeals of Oregon

August 13, 2014

In the Matter of V.B., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent,
v.
V.B., Appellant

 Argued and Submitted July 8, 2013

Jackson County Circuit Court. 11074MC. Lorenzo A. Mejia, Judge.

James A. Palmer argued the cause and filed the brief for appellant.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 1101

WOLLHEIM, J.

[264 Or.App. 622] Appellant seeks reversal of an order of involuntary commitment for a period not to exceed 180 days. ORS 426.130. Among other contentions, appellant asserts, in an unpreserved assignment, that (1) the trial court erred in failing to advise her of the right to subpoena witnesses, as required by ORS 426.100(1) (2009), amended by Oregon Laws 2013, chapter 360, section 24 [1]; (2) the violation constitutes plain error, see ORAP 5.45(1); and (3) we should exercise our discretion to review the error. We conclude that the trial court committed plain error in failing to advise appellant of her right to subpoena witnesses as required by ORS 426.100(1)(d), and we exercise our discretion to correct the error. We reverse and, accordingly, do not address appellant's remaining assignments of error.

The relevant facts are procedural and undisputed. Appellant appeared before the trial court for a civil commitment hearing, represented by counsel. At the beginning of the hearing, and in the midst of continual interruptions from appellant, the trial court advised appellant of the following:

" We're having a hearing today about you, and the question for me to decide after hearing the evidence is if you have a mental illness that poses a threat to yourself or to others. And in between there is the question * * * if you have a mental illness and pose a threat to yourself or others, would you be willing to cooperate in your treatment. And if I find that you are willing to cooperate in your treatment, we can take an alternate route other than commit you to the care and custody of the Department of Human Services for a period of 180 days."

The trial court, through the interruptions, also explained to appellant that appellant had the right to give testimony during the hearing. After a few more interruptions, the trial court indicated it was done advising appellant, and the commitment hearing began. After hearing the evidence, the trial court found that appellant suffered from a mental illness and ordered appellant be committed for a period not to exceed 180 days.

[264 Or.App. 623] Appellant argues that the trial court committed reversible plain error in failing to advise her of the information listed in ORS 426.100(1). That statute provides:

" At the time the allegedly mentally ill person is brought before the court, the court shall advise the ...

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