State v. P. B. S. ( 2023 )

706
Submitted January 25, affirmed March 22, 2023
In the Matter of P. B. S.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
P. B. S.,
Appellant.
Benton County Circuit Court
21CC07015; A177687
527 P3d 815
Appellant appeals a judgment committing him to the custody of the Mental
Health Division for a period not to exceed 180 days, as a person with mental ill-
ness, and an order prohibiting him from possessing or purchasing firearms. In an
unpreserved claim of error, appellant argues that the trial court plainly erred by
conducting a civil commitment hearing upon a citation that failed to comply with
ORS 426.080 and ORS 426.090. ORS 426.090 requires the trial court to issue a
citation containing certain information and serve it upon the person subject to
civil commitment. ORS 426.080 requires the person who serves the citation to
make a return on the citation showing the time, place, and manner of service
and to file it with the clerk of the court. In this case, the trial court issued a
citation, but the trial court file does not contain a return of service. At the same
time, the judgment expressly states that the citation was served on appellant.
Held: The trial court did not commit a “plain” error when it proceeded with appel-
lant’s civil commitment hearing, because the issue is whether appellant was
actually served, and the record allows for competing inferences as to whether
appellant was actually served. To the extent that appellant is challenging the
absence of the return of service from the court file in and of itself, regardless of
actual service, any error is not plain, because it is not obvious and is reasonably
in dispute that it is error to proceed in such circumstances, regardless of actual
service.
Affirmed.
Matthew J. Donohue, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert A. Koch, Assistant Attorney
General, filed the brief for respondent.
Cite as 324 Or App 706 (2023) 707
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
708 State v. P. B. S.
AOYAGI, P. J.
Appellant appeals a judgment committing him to
the custody of the Mental Health Division for a period not
to exceed 180 days, as a person with mental illness, and an
order prohibiting him from possessing or purchasing fire-
arms. In his sole assignment of error, he contends that the
trial court plainly erred “by conducting a [civil commitment]
hearing upon a citation that failed to comply with ORS
426.080 and ORS 426.090.” For the following reasons, we
affirm.
ORS 426.070 addresses the initiation of civil com-
mitment proceedings. As relevant here, if the trial court
receives the requisite notice and concludes that probable
cause exists that a person is someone with mental illness,
then the court “shall, through the issuance of a citation as
provided in ORS 426.090, cause the person to be brought
before it at a time and place as it may direct, for a hear-
ing under ORS 426.095 to determine whether the person
is a person with mental illness.” ORS 426.070(5)(a). ORS
426.090 describes what information must be included in the
citation; it then states, “The citation shall be served upon
the person by delivering a duly certified copy of the original
thereof to the person in person prior to the hearing. The per-
son shall have an opportunity to consult with legal counsel
prior to being brought before the court.” Separately, ORS
426.080 provides, in relevant part, “The person serving * * *
the citation provided for by ORS 426.090 shall, immediately
after service thereof, make a return upon the original * * *
citation showing the time, place and manner of such service
and file it with the clerk of the court.”
In this case, the trial court file contains a citation
issued on December 14, 2021, and it is undisputed that the
citation contained the required information. However, it
is uncertain whether the citation was served on appellant
as required by ORS 426.090, insofar as the trial court file
does not contain the return of service that should have been
filed under ORS 426.080. In any event, appellant appeared
with counsel at the commitment hearing, which took place
on December 16, 2021. The court heard the evidence and
determined that the criteria for civil commitment were met.
Cite as 324 Or App 706 (2023) 709
It then entered a judgment committing appellant to the cus-
tody of the Mental Health Division for a period not to exceed
180 days and an order prohibiting him from possessing or
purchasing firearms. The judgment expressly refers to the
“citation issued to and served upon” appellant.
On appeal, appellant contends that the trial court
erred by conducting the civil commitment hearing “upon a
citation that failed to comply with the commitment proce-
dures required by ORS 426.080 and ORS 426.090.” Appellant
did not raise that issue in the trial court and therefore
requests plain-error review. “Generally, an issue not pre-
served 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 correct a “plain” error. 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 our having to choose among
competing inferences. State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013). If the trial court made a “plain” error, it
is a matter of discretion whether we will correct it. State v.
Gornick, 340 Or 160, 166, 130 P3d 780 (2006).
In State v. R. E. F., 299 Or App 199, 200, 447 P3d
56 (2019), the state conceded, and we agreed, that the trial
court plainly erred by failing to issue a citation to the appel-
lant as required by ORS 426.090, noting that there was no
citation in the court file and that nothing in the record indi-
cated that a citation had been served. A year later, in State
v. R. E. J., 306 Or App 647, 648-49, 474 P3d 461 (2020), we
extended that principle, analogizing to R. E. F. to hold that
the trial court plainly erred in holding a civil commitment
hearing, where the court had issued a citation but there was
no indication that it had been served on the appellant. Since
R. E. J., the state has conceded error in a number of similar
cases. See State v. J. R. W., 307 Or App 372, 373, 475 P3d 138
(2020) (holding that it was plain error to hold a civil com-
mitment hearing, where the record did not contain a return
of service for the citation); State v. V. J. S., 313 Or App 396,
397, 491 P3d 107 (2021) (same); State v. D. S., 317 Or App 65,
66, 501 P3d 560 (2022) (same); State v. A. B., 318 Or App 414,
415, 505 P3d 1103 (2022) (same).
710 State v. P. B. S.
Appellant argues that this case is comparable to the
foregoing line of cases. We disagree. As the state points out,
the trial court issued a citation in this case, and, although
there is no return of service in the court file, the judgment of
commitment expressly states that the citation was “issued
to and served upon” appellant. The state concedes that
an error occurred but, relying on the judgment language,
argues that we should decline to exercise our discretion to
correct it.
The parties’ respective positions have made it nec-
essary for us to consider exactly how one should conceive of
the “error” that the trial court allegedly made. Assignments
of error must be directed at “rulings.” ORAP 5.45(3) (“Each
assignment of error must identify precisely the legal, pro-
cedural, factual, or other ruling that is being challenged.”).
When no objection was made below, however, and the
alleged error is more in the nature of an omission than an
affirmative action at a distinct point in time, it can be dif-
ficult to identify the precise “error” that the court allegedly
committed.
We have not previously had occasion to identify pre-
cisely how the error should be understood in this situation,
as it has not been a point of significance in our prior cases.
Upon consideration, we understand appellant to be arguing
that the trial court violated appellant’s due process rights
when it failed to serve the citation on appellant as required
by ORS 426.090—as evinced by the absence from the trial
court file of the proof of service required by ORS 426.080—
and nonetheless proceeded to hold a hearing that resulted
in his civil commitment. That is consistent with appellant’s
emphasis on due process. Service of the citation is ulti-
mately what provides due process; having the return of ser-
vice in the court file is simply a mechanism to document
that service occurred. It is also consistent with the statutory
framework. ORS 426.090 imposes an obligation on the trial
court—to issue a citation containing the required informa-
tion and to effect service of that citation on the person sub-
ject to civil commitment—whereas ORS 426.080 imposes an
obligation on the process server—to “make a return upon the
original * * * citation showing the time, place and manner of
such service and file it with the clerk of the court.”
Cite as 324 Or App 706 (2023) 711
We therefore understand the claimed error to turn
on the alleged lack of service of the citation, rather than
the absence of a return of service in the court file in and of
itself.1 With that understanding, we conclude that the trial
court did not commit a “plain” error. There are competing
inferences in the record as to whether appellant was served
with the citation that the court issued: the lack of a return
of service in the court file, on the one hand, and the judg-
ment stating that appellant was served with the citation,
on the other. An error is not “plain” if we have to choose
between competing inferences in the record. Vanornum, 354
Or at 629. Because we are limited to plain-error review, and
because the error is not “plain,” we affirm.
Affirmed.
1
To the extent that we are mistaken, and appellant does mean to argue that
the absence of the return of service from the trial court file in and of itself made
it error for the trial court to proceed, we reject that argument on the basis that
the error is not plain. An error is not “plain” unless the legal point is obvious
and not reasonably in dispute. Vanornum, 354 Or at 629. It is not obvious and is
reasonably in dispute whether the process server’s failure to comply with ORS
426.080 means that the court could not proceed with a civil commitment hearing,
regardless of actual service. See State v. S. R.-N., 318 Or App 154, 161, 506 P3d
492 (2022) (emphasizing, in the context of intellectual-disability commitments,
that, where statutory procedures “aim to ensure due process, it is not necessarily
true that the failure to satisfy those procedures denies due process; that is, a
constitutionally significant deprivation of due process requires an assessment
of the risk that a procedural failure resulted in the commitment” (emphases in
original)).