State v. C. T. ( 2024 )

718 July 10, 2024 No. 483
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of C. T.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
C. T.,
Appellant.
Multnomah County Circuit Court
23CC03808; A181802
Jane W. Fox, Judge.
Argued and submitted June 6, 2024.
Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 333 Or App 718 (2024) 719
AOYAGI, P. J.
Appellant appeals a judgment involuntarily com-
mitting him to the custody of the Oregon Health Authority
for up to 180 days based on his being a person with men-
tal illness. Appellant raises two unpreserved claims of error.
First, appellant argues that, under ORS 426.100(3)(e), the
court was required to appoint counsel for him as soon as rea-
sonably possible after he was admitted to the hospital on an
emergency hold and plainly erred by not appointing counsel
sooner than it did. Second, appellant argues that the court
plainly erred by failing to enforce the applicable statutes and
rules regarding the mental health examiner’s role in civil
commitment proceedings and the examiner’s report. For the
reasons explained below, we affirm.
The relevant facts are procedural. Appellant was
placed on an emergency hold on Saturday, June 17. After
the weekend and a Monday holiday, the court entered the
notice of mental illness in the court register on Tuesday,
June 20. The investigator’s report was filed on Thursday,
June 22. On Friday, June 23, the court issued the citation,
appointed counsel, and set appellant’s commitment hearing
for Monday, June 26. The hearing was held as scheduled,
with appellant and his court-appointed counsel present. As
discussed more later, the mental health examiner was also
present at the hearing, conducted an examination, and pro-
vided his report. After the hearing, the court issued a judg-
ment of civil commitment and an order formally appointing
appellant’s counsel “as of” Friday, June 23.
As previously described, appellant raises two
assignments of error, one relating to the timing of the
appointment of counsel and the other relating to the mental
health examiner. Both claims of error are unpreserved, so
appellant requests plain-error review. “Generally, an issue
not preserved in the trial court will not be considered on
appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000).
However, we have discretion to review for “plain” errors.
ORAP 5.45(1). An error is “plain” when it is an error of law,
the legal point is obvious and not reasonably in dispute, and
the error is apparent on the record without having to choose
720 State v. C. T.
among competing inferences. State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013).
In his first assignment of error, appellant argues
that, under ORS 426.100(3)(e), the trial court was required
to appoint counsel for him as soon as reasonably possible
after he was admitted to the hospital on an emergency hold
and plainly erred by not appointing counsel sooner than it
did. The state responds that any error does not qualify as
“plain.” We agree with the state.
As relevant here, ORS 426.232 provides procedures
for hospitals to detain individuals who are believed to be
dangerous to themselves or others and in need of emer-
gency care or treatment for mental illness. An individual so
detained has the right to counsel. ORS 426.100(2)(c); ORS
426.100(3). The hospital is to inform the individual of their
right to counsel. ORS 426.234(1)(a). Ultimately, even if coun-
sel is not requested, “the court shall appoint suitable legal
counsel unless counsel is expressly, knowingly and intelli-
gently refused by the person.” ORS 426.100(3)(d).
The question is when counsel is to be appointed.
ORS 426.100 is silent on that issue, with one exception.
The exception is ORS 426.100(3)(e), which provides, “If the
person is being involuntarily detained before a hearing on
the issue of commitment, the right under paragraph (a) of
this subsection to contact an attorney or under paragraph
(b) of this subsection to have an attorney appointed may be
exercised as soon as reasonably possible.”1 (Emphasis added.)
Relying on that statutory language, appellant argues that
the trial court was required to appoint counsel for him as
soon as reasonably possible once he was placed on an emer-
gency hold on Saturday, June 17, and plainly erred by not
appointing counsel until Friday, June 23.
Any error is not plain. First, as a matter of statutory
construction, it is not obvious or beyond reasonable dispute
1
The referenced “paragraph (a)” is ORS 426.100(3)(a), which recognizes “[t]
he right to obtain suitable legal counsel possessing skills and experience com-
mensurate with the nature of the allegations and complexity of the case during
the proceedings.” The referenced “paragraph (b)” is ORS 426.100(3)(b), which
states, in relevant part, “If the person is determined to be financially eligible for
appointed counsel at state expense, the court will appoint legal counsel to repre-
sent the person.”
Cite as 333 Or App 718 (2024) 721
that ORS 426.100(3)(e) requires the court to appoint counsel
for someone as soon as reasonably possible after an emer-
gency hold starts. Although ORS 426.100(3)(d) ultimately
requires the court to appoint counsel even if no request is
made, ORS 426.100(3) as a whole seems to contemplate a
window of time in which counsel has not yet been appointed
and may be requested. Moreover, the only provision of ORS
426.100(3) that contains any timing language is paragraph
(e), which provides that the rights specified in paragraphs
(a) and (b) “may be exercised as soon as reasonably possible.”
That phrasing seems to refer to when the detained person
may act to obtain or request counsel (thus “exercising” the
right), rather than when the court must appoint counsel in
the absence of a request. Second, even if the court’s obliga-
tion to appoint counsel “as soon as reasonably possible” is
triggered as soon as an emergency hold is placed, the record
is silent as to what was “reasonably possible” here. Because
no objection was made, no record was made on that issue.
Any error is therefore not “apparent on the record,” which
is another reason that any error is not “plain.” Vanornum,
354 Or at 629. For both reasons, the court did not plainly err
under ORS 426.100 by appointing counsel when it did.2
Turning to the second assignment of error, appel-
lant argues that the court plainly erred by failing “to strictly
enforce the statutory framework for the examiner” and “by
allowing the examiner to opine without the examiner hav-
ing begun the examination prior to the hearing, without
having had counsel present at a pre-hearing examination,
and without conducting the statutorily and OAR-required
inquiries and examination.” Appellant divides his argument
into six parts. We address the first three parts individually
and the last three parts together.
2
Although appellant’s argument focuses primarily on the timing of the
appointment of counsel relative to the start of appellant’s emergency hold, appel-
lant also takes issue, to some degree, with (1) the court appointing counsel for
him on Friday for a Monday commitment hearing, and (2) entering the formal
order appointing counsel after the hearing. There is no indication in the record
that counsel lacked adequate time to prepare for the hearing or that appellant
was not given an adequate opportunity to meet with counsel before the hearing.
As for the timing of the formal order, we view the actual appointment of counsel
as the key event, rather than the entry of the formal order memorializing that
appointment, at least for present purposes.
722 State v. C. T.
First, appellant asserts that he was deprived of the
procedural protection in ORS 426.075(2), which requires the
court to “appoint examiners under ORS 426.110 sufficiently
in advance of the hearing so that the examiners may begin
their preparation for the hearing.” Appellant relies on there
being “no indication” in the record as to when appellant’s
records were made available to the examiner or as to what
the examiner did to prepare for the hearing. The problem
with that argument is that it is incompatible with plain-error
review. For an error to be “plain,” it must be apparent on the
face of the record. Vanornum, 354 Or at 629. We cannot find
plain error based on speculation in the face of a silent record.
Second, appellant asserts that, to the extent that
the examiner did conduct part of the examination prior to
the hearing and did not allow appellant’s counsel to be pres-
ent, appellant was deprived of the procedural protection in
ORS 426.100(3)(f), which allows counsel to be present at the
examination. See State v. K. G., 330 Or App 493, 502, 544
P3d 403 (2024) (construing ORS 426.100(3)(f) “to allow a
person the opportunity to have their counsel present during
examination by the mental health examiner if it occurs
before the hearing”). Appellant relies on there being “no
indication that the examiner notified appellant’s counsel of
any examination that occurred before the hearing” and “no
information” as to whether counsel was present. Again, that
argument is incompatible with plain-error review, because
the alleged error must be apparent on the record.
Third, appellant argues that it is reasonable to
infer that the examiner did not begin the examination pro-
cess prior to the hearing as required by ORS 426.120, see
ORS 426.120(1)(b) (requiring the examiner to “[i]nitiate the
examination process prior to the hearing”), and that such
failure negatively impacted the fundamental fairness of
the proceeding. Appellant derives that inference from the
court’s statement at the hearing, “All right, Mr. [Examiner],
let’s begin the examination.” We are skeptical that the
court’s statement allows a reasonable inference as to what
the examiner did or did not do before the hearing. In any
event, ORS 426.120(1)(b) expressly provides, “Any failure to
comply with this paragraph shall not, in itself, constitute
Cite as 333 Or App 718 (2024) 723
sufficient grounds to challenge the examination conducted
by an examiner.” Any error is not plain.
Finally, appellant challenges the substance of the
examiner’s examination and report in various regards. He
argues that there is “no indication in the record” that the
examiner conducted the examination “in a manner that elic-
it[ed] the data necessary for establishing a diagnosis and a
plan for treatment,” as required by OAR 309-033-0950(4).
He argues that the examiner failed to include in his report
“a recommendation as to the type of treatment facility[3] best
calculated to help the person recover from mental illness,” as
required by ORS 426.120(2)(a). And he argues that the exam-
iner failed to conduct the “mental status examination” and
“psychosocial history” required by OAR 309-033-0960(2).
As to the first and third arguments, we agree with
the state that, on this record, it is not obvious that the exam-
ination failed to meet the requirements of OAR 309-033-
0950(4) and OAR 309-033-0960(2). As to the second argu-
ment, the state acknowledges that the examiner’s report
does not contain the required treatment-facility recom-
mendation but argues that the error is effectively harmless
because the examiner recommended OHA commitment and
it is OHA’s decision where to place a person who has been
committed. Given the legislature’s imposition of an express
requirement that the examiner make a recommendation on
the type of facility best suited to the person’s needs, we are
reluctant to declare an omission of that information from
the examiner’s report to be universally harmless. On this
specific record, however, we conclude that the error was not
sufficiently grave to warrant the exercise of our discretion.
For those reasons, we reject the second assignment
of error regarding the mental health examiner’s prepara-
tion, examination, and report.
Affirmed.
3
“Facility” means “a state mental hospital, community hospital, residential
facility, detoxification center, day treatment facility or such other facility as the
authority determines suitable that provides diagnosis and evaluation, medical
care, detoxification, social services or rehabilitation to persons who are in custody
during a prehearing period of detention or who have been committed to the Oregon
Health Authority under ORS 426.130.” ORS 426.005(1)(c) (definition of “facility”).