State v. M. M. -B. ( 2024 )

500 May 8, 2024 No. 302
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of M. M.-B.,
a Person Alleged to have Intellectual Disabilities.
STATE OF OREGON,
Respondent,
v.
M. M.-B.,
Appellant.
Lane County Circuit Court
22CC07835; A180977
Charles M. Zennaché, Judge.
Submitted March 20, 2024.
Joseph DeBin and Multnomah Defenders, Inc., filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Carson L. Whitehead,
Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 332 Or App 500 (2024) 501
AOYAGI, P. J.
Appellant appeals a judgment committing her
to the Department of Human Services for a period not to
exceed one year, with conditional release and placement in
the care of her parents, based on her inability to care for
her personal needs as the result of an intellectual disability.
See ORS 427.005 - 427.900 (regarding intellectual-disabil-
ity commitments). In her sole assignment of error, appellant
contends that the trial court plainly erred by failing to pro-
vide the complete advice of rights required by ORS 427.265.
Specifically, she argues that the court plainly erred when
it advised her that she had the right to an attorney but did
not specify that she had the right to “suitable legal counsel
possessing skills and experience commensurate with the
nature of the allegations and complexity of the case.” For
the following reasons, we affirm.
The only facts relevant to the issue on appeal are
procedural. Appellant was brought before the court for a
commitment hearing. She appeared with appointed counsel.
At the beginning of the hearing, the court advised appellant
of the nature of the proceeding and her rights, including
stating, “You have a right to be represented by an attorney,
and Ms. Knight has been appointed to represent you in this
matter.”
Appellant contends that the court did not provide a
complete enough advice of rights and that, as a result, she
was deprived of a fair hearing. She points to ORS 427.265(1),
which provides:
“At the time that a person who is alleged to have an
intellectual disability and to be in need of commitment for
residential care, treatment and training is brought before
the court, the court shall advise the person of the reason
for being brought before the court, the nature of the pro-
ceedings and the possible results of the proceedings. The
court shall also advise the person of the right to subpoena
witnesses and to suitable legal counsel possessing skills and
experience commensurate with the nature of the allegations
and complexity of the case during the proceedings, and that
if the person does not have funds with which to retain suit-
able legal counsel, the court shall appoint such legal counsel
to represent the person. If the person does not request legal
502 State v. M. M. -B.
counsel, the legal guardian, relative or friend may request
the assistance of legal counsel on behalf of the person.”
(Emphases added.)
Appellant acknowledges that she did not preserve
her claim of error and that we are therefore limited to plain-
error review. See State v. Wyatt, 331 Or 335, 341, 15 P3d 22
(2000) (“Generally, an issue not preserved in the trial court
will not be considered on appeal.”); ORAP 5.45(1) (allowing
discretionary review of “plain” errors). 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 among competing infer-
ences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013). It is a matter of discretion whether we will correct a
plain error. State v. Gornick, 340 Or 160, 166, 130 P3d 780
(2006).
Appellant contends that the error is plain and that
we should exercise our discretion to correct it. In response,
the state argues that any error is not plain, because it is not
obvious that the advice of rights that the trial court gave
was legally insufficient under the circumstances. The state
argues in the alternative that any error was harmless.
We agree with the state that it is not obvious and
beyond reasonable dispute that the advice of rights given
was legally insufficient. Unlike cases in which a person was
not advised of a right at all—such as not being advised of the
right to subpoena witnesses, State v. M. L. S., 288 Or App
117, 118, 404 P3d 1145 (2017)—appellant was advised of
her right to an attorney. Moreover, at the time the advice of
rights was given, that right had already been effectuated, in
that the trial court had already determined that appellant
did not have the funds to retain suitable legal counsel and
had appointed suitable legal counsel for her, who was pres-
ent at the hearing. Under the circumstances, it is not obvi-
ous, and is reasonably in dispute, whether the court needed
to include the “suitability” language in its advice of rights
to comply with ORS 427.265. See Vanornum, 354 Or at 629(one requirement for an error to be “plain” is that the legal
point is obvious and not reasonably in dispute).
Cite as 332 Or App 500 (2024) 503
Further, even if we were to strictly construe ORS
427.265 as requiring a verbatim recitation of all the lan-
guage regarding the right to counsel, we would not reverse
in this case. Because appellant’s right to counsel was fully
effectuated, any error was harmless or, at a minimum, not
grave enough to warrant reversing the judgment.
Affirmed.