In the Matter of Y. B., a Person Alleged to have Mental Illness.
Y. B ., Appellant. 296 Or. App. 781 STATE OF OREGON, Respondent,
Submitted January 18, 2019
Multnomah County Circuit Court 17CC04815; Monica M. Herranz,
Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc., fled the
brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jacob Brown, Assistant Attorney General, fled
the brief for respondent.
Lagesen, Presiding Judge, and James, Judge, and Landau,
Summary: Appellant appeals a judgment of commitment and
fre-arms order, arguing that the trial court plainly erred by
failing to advise him of rights and information as required
by ORS 426.100(1). He argues that the record contains no
evidence that the trial court provided the required advice.
The state argues that the record does not establish that the
trial court plainly erred, because there is an apparent gap
in the record during which the court might have provided the
required advice. Held: Appellant had the burden to
provide a record sufficient for review of his claim of error.
The record that appellant provided on appeal affirmatively
demonstrated that a part of the proceeding occurred off the
record, and that was the only time during the proceeding that
the court apparently interacted with appellant. Because an
account of that part of the proceeding would be necessary to
resolve appellant's claim of error, the Court of Appeals
could not review it.
Or. App.782] LAGESEN, P. J.
appeals a judgment of commitment and a firearms-prohibition
order. ORS 426.130(1)(a)(C) and (D). He seeks reversal,
arguing that he was not advised by the trial court of certain
rights and information as required by ORS
426.100(1). Although he did not preserve his claim of
error, he argues that we should review it as plain error. The
state responds that the claim of error does not satisfy the
plain-error requirement that the record demonstrate the error
irrefutably, because the record affirmatively demonstrates
that additional proceedings occurred off the record. Because
appellant has not supplied us with the record needed to
permit review of the claimed error, under a plain-error
standard or otherwise, we affirm.
assigns error to the trial court's failure to comply with
ORS 426.100(1). We have held that, "to 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 argues
that, here, "the circuit court did not directly advise
the appellant of the rights or information contained in ORS
426.100(1)(a-e) or conduct an examination to determine a
valid waiver of the rights." He contends that
"[t]here is * * * no evidence that the court read any of
the rights contained in ORS 426.100(1) to the appellant or
that the appellant was present during his civil commitment
hearing." That, he argues, constitutes plain error.
Appellant does not argue [296 Or. App.783] that the trial
court committed procedural error, either by failing to place
the advice of rights on the record, or by failing to record
all portions of the commitment hearing. See State v. B.
K., 295 Or.App. 697, 434 P.3d 512 (2019) (holding error
was not plain when court gave the appellant advice of rights
in off-the-record discussion, and made a record afterward
that it had done so).
state argues in response that the record does not irrefutably
establish that the trial court plainly erred, because there
is an apparent gap in the record, during which the court
might have complied with ORS 426.100(1). See State v.
M. M, 288 Or.App. 111, 114, 405 P.3d 192 (2017) (among
other requirements, for an error to be plain, it must
"appear  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 [must be]
irrefutable" (internal quotation marks omitted)).
Appellant did not reply to the state's argument
concerning the record.
conclude that appellant cannot establish that the trial court
reversibly erred, because he has not supplied us with an
adequate record to review the assignment of error. The
portion of the record that appellant has provided
demonstrates affirmatively that some portion of the
commitment proceedings took place off the record or, at
least, outside of the record that has been provided to us.
The record we do have reveals that the court heard directly
from appellant, but does not capture that exchange. That lack
of a record precludes our review of appellant's claim of
what the record provided tells us. At the outset of the
commitment hearing, the trial court asked those present to
identify themselves. In addition to the judge, the
state's counsel, appellant's counsel, and a mental
health examiner identified themselves. Appellant did not
identify himself, and it appears that he was not in the room.
We know that because the court said, "I understand
we're going to go up to the patient's room to do the
rest of the hearing. Did you want to do the evidence down
here?" The state's counsel answered in the
affirmative, and two exhibits were then admitted into
evidence. The court subsequently indicated [296 Or. App.784]
that it would go off the record until they were
"upstairs." The court then went off the record.
the court came back on the record, neither the court nor the
parties requested to make a record of any off-the-record
proceedings that had taken place in the interim. Yet, the
on-the-record proceedings reflect that off-the-record
discussions involving appellant had taken place between the
time that the court went off the record and came back on it.
When the record resumed, a judicial assistant stated,
"We're back on the record[, ]" the state's
counsel then called two witnesses, and the lawyers made
arguments for and against appellant's commitment.
Appellant was not called as a witness on the record at that
point, he is never addressed by anyone or referred to as
being present, and there are no transcribed statements
attributed to him. Yet, during cross-examination of one of
the witnesses, and in closing argument, appellant's
lawyer referred to what the witness and the court had heard
from appellant. Appellant's lawyer, cross-examining a
witness and referring to appellant, stated, "Well, and
he explained to us this morning though that he had
not-the-he had not-the explanation for the drugs and what
they did and what they were used for had not been given to
him." (Emphasis added.) Appellant's counsel stated
in closing, "As the Court's aware my client would
like to be discharged. He doesn't feel he has a mental
illness. He explained that. He explained why he didn't
want to take medication." The mental health examiner
also referred to interviewing appellant "today,"
and her report from the hearing, under the heading
"examination," states that appellant was "seen
in his room." At the conclusion of the hearing, the
court made findings and subsequently entered the judgment of
commitment and firearms order.
Or. App.785] Those references (in particular, the reference
to the fact that appellant had "explained" things
to the trial court) indicate that a portion of the proceeding
occurred off the record, and the only time the court
interacted with appellant was during that off the record
portion. An account of those proceedings would be necessary
to resolve ...