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In re M. L. S.

Court of Appeals of Oregon

October 4, 2017

In the Matter of M. L. S., a Person Alleged to have an Intellectual Disability.
v.
M. L. S., Appellant. STATE OF OREGON, Respondent,

          Submitted August 29, 2017

         Yamhill County Circuit Court 16CC03931; Ladd J. Wiles, Judge.

          Joseph R. DeBin and Multnomah Defenders, Inc., fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

          Before Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Appellant, alleged to be a person with an intellectual disability, appeals an order committing him to the Department of Human Services for a period not to exceed one year. He contends that the trial court plainly erred by failing to advise him of his right to subpoena witnesses, as required by ORS 427.265 (1).

         Held:

         The failure to provide appellant with all of the information required by the statute constitutes egregious error that justifies plain error review. Furthermore, the error was not harmless and, in view of the nature of the proceeding, the relative interests of the parties in the proceeding, the gravity of the violation, and the ends of justice, it is appropriate for the Court of Appeals to exercise discretion to correct the error.

         Reversed.

         [288 Or. 118] EGAN, P. J.

         Appellant, alleged to be a person with an intellectual disability, appeals an order committing him to the Department of Human Services for a period not to exceed one year. See ORS 427.290. In his first assignment of error, [1]appellant contends that the trial court plainly erred by failing to advise him of his right to subpoena witnesses, as required by ORS 427.265(1).[2]

         As we have explained in the context of mental commitment proceedings, a civil commitment has serious consequences, and the statutes are intended to ensure that, before a person suffers those consequences, "he or she receives the benefit of a full and fair hearing." State v. M. L. R., 256 Or.App. 566, 570, 303 P.3d 954 (2013). If a court does not provide a person with all of the information required by the statute, then the person does not receive that benefit. Id. Thus, we have held that the failure to provide all the information required by the statute "constitutes an egregious error that justifies plain error review." Id. at 571. The reasoning we have applied to a trial court's failure to advise a person as required in involuntary mental commitment cases also applies in the context of involuntary commitments of persons with intellectual disabilities. Here, the state concedes that the court's failure to advise appellant of his right to subpoena witnesses was plain error.[3] We agree.

         [288 Or. 119] Nonetheless, the state asserts that we should decline to exercise our discretion to consider and correct the error; in the state's view, because trial counsel informed the court that he had not subpoenaed witnesses, the error was harmless.[4] We disagree. Our focus in determining whether the trial court's failure to give appellant all of the information required by ORS 427.265 is harmless is whether he received all of that required information from another source. See State v. S. J. K. 247 Or.App. 321, 326-28, 269 P.3d 83 (2011). Here, counsel's statement to the court that counsel had not subpoenaed witnesses does not demonstrate that appellant was provided with all of the information required under ORS 427.265, ...


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