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In re Y. B.

Court of Appeals of Oregon

March 27, 2019

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

         Case 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.

         [296 Or. App.782] LAGESEN, P. J.

         Appellant 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).[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.

         Appellant 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).

         The 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.

         We 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 error.

         Here is 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.

         When 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.[2] 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.

         [296 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 ...


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