State v. J. R. , 307 Or. App. 752 ( 2020 )

752
Submitted November 8, 2019, affirmed December 2, 2020
In the Matter of J. R.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
J. R.,
Appellant.
Multnomah County Circuit Court
18CC02825; A169514
477 P3d 421
Janet A. Klapstein, Judge pro tempore.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Affirmed.
Cite as 307 Or App 752 (2020) 753
PER CURIAM
Appellant appeals the trial court’s order that con-
tinued appellant’s civil commitment to the Oregon Health
Authority (OHA) for a period of time not to exceed 180 days.
ORS 426.301 (providing that a person committed must be
released at the end of 180 days unless OHA certifies to the
court that “the person is still a person with mental illness
and is in need of further treatment” and setting out a proce-
dure that allows the person to protest the continued commit-
ment). Appellant argues that it was plain error for the court
to fail to advise him that he was entitled to have the court
appoint a physician to examine him at the court’s expense.
ORS 426.303 (a person who protests continued commitment
must be informed of rights set out in ORS 426.301); ORS
426.301(3)(g) (a person is entitled to an examination by a
physician (or qualified professional) who is not a member of
the facility confining the person); ORS 426.301(3)(h) (trial
court will appoint an outside physician (or qualified profes-
sional) if the person protesting continued commitment can-
not afford one).
The state concedes that the trial court error plainly
erred but does not concede that we should exercise our dis-
cretion to correct the error. In the state’s view, the error was
harmless. That is because appellant received a notice that
stated that the OHA intended to continue his commitment
and that appellant was entitled, at no cost to appellant,
to an examination by a physician from outside the facility
confining him. The server who delivered the notice read to
appellant those statutory rights.
We agree with the state. We decided a virtually
identical issue in State v. T. W., 300 Or App 646, 647, 452
P3d 1081 (2019). There, relying on State v. Ritzman, 192 Or
App 296, 300-01, 84 P3d 1129 (2004), we held that the trial
court’s error in failing to advise the appellant of his right to
have a physician appointed at court expense was harmless
because the appellant had been adequately informed of his
rights when served with the notice, and we therefore did not
exercise our discretion to correct the error. T. W., 300 Or App
at 647 (citing State v. Kerne, 289 Or App 345, 349-50, 410 P3d
369 (2017), rev den, 363 Or 119 (2018) (“One circumstance
754 State v. J. R.
in which we will not and cannot exercise our discretion to
correct a plain error is when that error is harmless[.]”)). We
likewise in this case do not exercise our discretion to correct
the plain error, and we affirm the continued commitment
order.
Affirmed.