In the Matter of B. K., a Person Alleged to have Mental Illness.
B. K., Appellant. STATE OF OREGON, Respondent,
Submitted December 7, 2018
Clackamas County Circuit Court 18CC01373; Kenneth B. Stewart,
Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc., fled the
brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jona J. Maukonen, Assistant Attorney General,
fled the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
appeals an order of commitment, arguing that the trial court
plainly erred by failing to inform him of all of the possible
results of the proceeding as required by ORS 426.100(1).
Held: Because the record supports competing
inferences as to whether the trial court failed to
sufficiently inform appellant of the possible results of the
proceeding, the claim of error did not meet the requirements
for plain-error review.
Or.App. 698] LAGESEN, P. J.
appeals an order committing him for a period not to exceed
180 days pursuant to ORS 426.130. Appellant argues that the
trial court committed plain error when it failed to either
directly advise him of information and rights specified in
ORS 426.100(1) or conduct an examination on the record to
determine whether he validly waived the right to be so
advised. Specifically, appellant contends that the trial
court plainly erred by failing to advise him that the
possible results of the proceeding included voluntary
treatment or conditional release. See ORS 426.130(1)
and (2) (setting out possible results of proceeding). The
state has conceded that, under State v. M. M., 288
Or.App. 111, 405 P.3d 192 (2017), and State v. M.
T., 244 Or.App. 299, 258 P.3d 1288 (2011), the trial
court plainly erred. For the reasons we will explain, we
disagree, however, that the trial court plainly erred. We
therefore do not accept the state's concession of error,
and we affirm the trial court's order of commitment.
426.100(1) requires a court conducting a civil commitment
hearing to advise the person alleged to have a mental illness
of the reason for the proceedings, the nature of the
proceedings, the possible results of the proceedings, the
right to subpoena witnesses, and the right to representation
by, and appointment of, counsel. "[T]o comply with ORS
426.100(1), a trial court in a civil commitment proceeding
must either advise the allegedly mentally ill person directly
regarding those rights or conduct an examination on the
record to determine whether a valid waiver of the right to be
advised has been knowingly and voluntarily made."
State v. S. J. K, 247 Or.App. 321, 324, 269 P.3d 83
(2011) (internal quotation marks omitted).
acknowledges that his claim of error was not preserved.
See ORAP 5.45(1) ("No matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court and is assigned as error in the
opening brief in accordance with this rule, provided that the
appellate court may, in its discretion, consider a plain
error."). He contends, however, that it is plain error
and asks that we exercise our discretion to correct it.
[295 Or.App. 699] "Whether the trial court committed
plain error in failing to advise appellant of all of the
possible results of the proceedings depends on whether the
error was one of law, whether the error was
'apparent' so that the legal point is obvious and not
reasonably in dispute, and whether the error appears on the
record so that we 'need not go outside the record or
choose between competing inferences to find it, and the facts
that comprise the error are irrefutable.' State v.
Brown, 310 Or. 347, 355, 800 P.2d 259 (1990)."
M. M., 288 Or.App. at 114. As we will explain, here,
the record is subject to competing inferences-it is not
"irrefutable" that the trial court failed to fully
advise appellant as ...