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In re B. K.

Court of Appeals of Oregon

January 16, 2019

In the Matter of B. K., a Person Alleged to have Mental Illness.
v.
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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Appellant 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.

         Affirmed.

         [295 Or.App. 698] LAGESEN, P. J.

         Appellant 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.

         ORS 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).

         Appellant 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 ...


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