State v. A. M. ( 2024 )

No. 311 May 8, 2024 559
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
A. M.,
Appellant.
Clackamas County Circuit Court
23CC02262; A181365
Ulanda L. Watkins, Judge.
Submitted on March 20, 2024.
Christopher J. O’Connor and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Stacy M. Chaffin, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
PER CURIAM
Vacated and remanded.
560 State v. A. M.
PER CURIAM
Appellant appeals a judgment of commitment under
ORS 426.130(1)(a)(C) and related firearms order under ORS
426.130(1)(a)(D). In her sole assignment of error, she chal-
lenges the firearms order. The state concedes error. We
vacate and remand.
Appellant’s civil commitment hearing was held on
April 18, 2023. The state did not request a firearms order.
During its oral ruling, the trial court stated that it “didn’t
really hear anything about firearms” and was “not going to
do the firearms order.” The court initially prepared a gen-
eral judgment without a firearms order. However, on April
20, 2023, the court entered an amended general judgment
with a box checked to indicate that appellant “is reasonably
likely to constitute a danger to self or others, therefore is
subject to an Order Prohibiting Purchase or Possession of
Firearms (FQOR).”1 The court also entered separately an
“Order Prohibiting Purchase or Possession of Firearms.”
Immediately below the statement in the order that appel-
lant is prohibited from purchasing or possessing firearms
and ammunition, the “Other” box is checked, and a sentence
runs off the page, with the visible portion stating, “There
was no mention of firearms during the hearing. [Appellant]
is prohibited from the purcha [remainder cut off].”
Appellant contends that the trial court erred by
entering a firearms order outside her presence after orally
stating that it would not do so, thereby depriving her of the
opportunity to address it. Preservation is excused under the
circumstances. See State v. Baccaro, 300 Or App 131, 134
n 2, 452 P3d 1022 (2019) (“Because the error of which defen-
dant complains appeared for the first time in the written
judgment, * * * defendant is excused from the preservation
requirement.”).
1
The trial court file contains a signed general judgment dated April 18,
2023, on which the preprinted line “is subject to an Order Prohibiting Purchase
or Possession of Firearms (FQOR)” is crossed out. That judgment was not entered
in the register. The only judgment on the register is the “amended” judgment
dated April 20, 2023, with a comment stating, “firearm restriction added.” There
is no indication in the record why the original judgment was not entered or why
the trial court decided to enter the amended judgment instead.
Nonprecedential Memo Op: 332 Or App 559 (2024) 561
The state concedes that the trial court erred “by
making the firearms prohibition findings without provid-
ing appellant any notice that they were at issue or opportu-
nity to be heard.” We agree that, under the circumstances,
it is appropriate to vacate the firearms order and remand
for further proceedings. Appellant asks that we also direct
the trial court to recall the notice sent to the Oregon State
Police, but we agree with the state that it is unnecessary to
give specific instructions on that point. We leave it to the
trial court to take all appropriate action on remand.
Vacated and remanded.