State v. W. W. , 316 Or. App. 263 ( 2021 )

263
Submitted November 5, reversed December 8, 2021
In the Matter of W. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
W. W.,
Appellant.
Marion County Circuit Court
21CC02394; A176162
501 P3d 97
Matthew L. Tracey, Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Reversed.
264 State v. W. W.
PER CURIAM
Appellant appeals a judgment committing her
to the Mental Health Division for a period not to exceed
180 days. Appellant contends that the court plainly erred,
and she is entitled to reversal because the record does not
demonstrate that the citation required to issue pursuant
to ORS 426.090 was served on her. That statute requires a
court to issue a citation to the person alleged to have a men-
tal illness that contains information including “the right to
legal counsel, the right to have legal counsel appointed if the
person is unable to afford legal counsel, and, if requested,
to have legal counsel immediately appointed,” as well as
“the right to subpoena witnesses in behalf of the person to
the hearing.” That statute also requires that “[t]he citation
shall be served upon the person by delivering a duly cer-
tified copy of the original thereof to the person in person
prior to the hearing.” ORS 426.080 specifies that the per-
son serving such a citation “shall, immediately after service
thereof, make a return upon the original warrant or citation
showing the time, place and manner of such service and file
it with the clerk of the court.” Appellant contends that no
proper citation was served on her and that the record lacks
the required certificate of service. Pointing to our decision
in State v. J. R. W., 307 Or App 372, 475 P3d 138 (2020), the
state agrees and concedes the plain error.
We accept the concession. Assuming, without decid-
ing, that the trial court’s multipurpose order dated April 28,
2021, served the purpose of the statutory citation, that order
did not apprise appellant of her rights as required by ORS
426.090. And there is no return in the record indicating that
the citation was served on appellant as required by ORS
426.080. As in J. R. W., we agree that the failure to com-
ply with ORS 426.080 and ORS 426.090 constitutes plain
error in this case as well. In light of the gravity of the error,
we exercise our discretion to correct the error. See generally
Ailes v. Portland Meadows, Inc., 312 Or 376, 382-83, 823 P2d
956 (1991) (setting out factors to consider in the exercise of
discretion).
Reversed.