State v. J. R. W. ( 2020 )

372
Submitted September 4, reversed October 21, 2020
In the Matter of J. R. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
J. R. W.,
Appellant.
Linn County Circuit Court
20CC00499; A173590
475 P3d 138
Michael B. Wynhausen, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed.
Cite as 307 Or App 372 (2020) 373
PER CURIAM
Appellant appeals a judgment committing him to
the Mental Health Division for a period not to exceed 180
days, and an order prohibiting him from purchasing or pos-
sessing firearms. Appellant contends he is entitled to rever-
sal because the record does not demonstrate that the cita-
tion required to issue pursuant to ORS 426.090 was served
on him. That statute requires a court to issue a citation to
an allegedly mentally ill person 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 immedi-
ately 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 certified copy of the original thereof to
the person in person prior to the hearing.” ORS 426.080 spec-
ifies that the person serving such a citation “shall, immedi-
ately 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 the lack of a certificate of service in the record
constitutes plain error. Pointing to our decision in State v.
R. E. F., 299 Or App 199, 200-01, 447 P3d 56 (2019), the
state agrees and concedes the error.
We accept the concession. Much as in R. E. F., we
agree that the failure to comply 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 cor-
rect 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.