State v. S. R.-N. ( 2022 )

154
Submitted December 3, 2021, affirmed March 9, 2022
In the Matter of S. R.-N.,
a Person Alleged to have Intellectual Disabilities.
STATE OF OREGON,
Respondent,
v.
S. R.-N.,
Appellant.
Marion County Circuit Court
19CC00185; A175900
506 P3d 492
Appellant challenges on procedural grounds and as plain error his commit-
ment to the custody of the Department of Human Services for one year, under
ORS chapter 427, on the basis that his intellectual disability made him dan-
gerous to himself and others and that he was unable to provide for his basic
personal needs. In three assignments of error, he argues that (1) his hearing
was not held within the number of days required by statute after the trial court
issued the warrant of detention (ORS 427.245(1) (if a person is detained under
a warrant of detention, “the court shall hold the hearing within seven judicial
days”)); (2) a citation was not issued as required by ORS 427.245(2) (“the court
shall cause a citation to issue” that includes specified information and rights);
and (3) the court failed to advise him of the nature of the proceedings, as required
by ORS 427.265(1). Held: Given the record and appellant’s arguments on appeal,
the court declined to exercise its discretion to correct the errors appellant asserts
are plain.
Affirmed.
Keith R. Raines, Senior Judge.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
TOOKEY, P. J.
Affirmed.
Cite as 318 Or App 154 (2022) 155
TOOKEY, P. J.
This is an appeal of a judgment committing appel-
lant to the custody of the Department of Human Services
(DHS) for one year, under ORS chapter 427, on the basis
that his intellectual disability made him dangerous to him-
self and others and that he was unable to provide for his
basic personal needs. ORS 427.215; ORS 427.290. His chal-
lenge to the civil commitment is not a challenge to the mer-
its, i.e., whether the evidence was sufficient to establish that
he has an intellectual disability or whether that disability
was a basis for commitment. Rather, appellant challenges
the commitment on procedural grounds. In three assign-
ments of error, he argues that (1) his hearing was not held
within the number of days required by statute after the trial
court issued the warrant of detention (ORS 427.245(1) (if a
person is detained under a warrant of detention, “the court
shall hold the hearing within seven judicial days”)); (2) a
citation was not issued as required by ORS 427.245(2) (“the
court shall cause a citation to issue” that includes specified
information and rights); and (3) the court failed to advise
him of the nature of the proceedings, as required by ORS
427.265(1).
At the commitment hearing, appellant did not
bring to the court’s attention the procedural deficiencies he
claims on appeal were error. Thus, he asks us to correct the
claimed errors as plain error. For its part, the state concedes
that defendant is correct as to the second assignment. As we
explain below, we do not accept the state’s concession. Nor do
we conclude that reversal of the judgment of commitment is
merited as plain error for appellant’s other assignments of
error. We affirm.
The record reflects the following facts, which are
undisputed and mostly procedural. Prior to appellant’s com-
mitment hearing, appellant had been previously commit-
ted under ORS chapter 427 for one year to residential care,
treatment, and training, and was residing at a group home
run by DHS’s Stabilization and Crisis Unit (SACU). As the
end of the one-year commitment approached, two represen-
tatives from SACU petitioned the circuit court to continue
appellant’s commitment for one more year. ORS 427.235(1).
156 State v. S. R.-N.
On February 12, 2021, the trial court found the notice suf-
ficient to show the need for investigation and forwarded the
notice to the community developmental disabilities director
for Marion County. An investigator for the county investi-
gated the need for appellant’s continued commitment and
issued a report recommending continued commitment.
On March 16, 2021, the court found that there was prob-
able cause to believe appellant was intellectually disabled
for the purposes of an ORS chapter 427 commitment and
ordered the issuance of a citation for a March 25 hearing,
the appointment of counsel, and a warrant of detention.
On March 24, the state moved the court to postpone
the March 25 hearing to April 1 because a key witness was
unable to testify on the scheduled date. The motion noted
that appellant’s two attorneys were notified on March 19
and March 24 of the state’s wish to postpone the hearing,
and, on March 24, one of appellant’s attorneys responded
that there was no objection to a postponement. The court
granted the motion, and a hearing was held on April 1.
Appellant was represented by counsel, and two employees
from SACU were present. The court made some preliminary
remarks, telling appellant at several points that he was at
a hearing to determine whether or not he had a “mental
illness” and, if so, that the court could commit appellant
to the Oregon State Hospital for a one-year period. The
court also told appellant that he had the right to a court-
appointed attorney and to subpoena witnesses, and that it
would “receive evidence on [appellant’s] behalf.” The state’s
attorney then outlined how it would proceed with its case to
prove that appellant’s intellectual disability was a basis for
continued commitment under the care of SACU. The state
called witnesses (who were cross-examined by appellant)
to testify about appellant’s intellectual disability and the
bases for continued commitment to residential care. The
court found that the evidence was clear and convincing that
appellant had an intellectual disability and was dangerous
and ordered appellant’s continued commitment.
We first discuss appellant’s second assignment of
error. There is no evidence in the record that a citation was
issued, and appellant argues that the trial court plainly
erred when it violated the requirements for a citation set out
Cite as 318 Or App 154 (2022) 157
in ORS 427.245(2). In appellant’s view, the failure to provide
a citation deprived him the benefit of a full and fair hearing,
i.e., his rights under the Due Process Clause were violated.
ORS 427.245(2) provides that the court must cause a cita-
tion to issue to a person alleged to need residential care,
treatment, and training because of an intellectual disabil-
ity. The citation must “state the specific reasons the person
is believed to be in need of commitment for residential care,
treatment and training,” and contain a notice of the time
and place of the commitment hearing as well as various
rights afforded to the person alleged to have an intellectual
disability, such as the right to legal counsel. ORS 457.245(2).
For us to correct an error as plain, the claimed error
must be (1) “one ‘of law’ ”; (2) “ ‘apparent,’ i.e., the point must
be obvious, not reasonably in dispute”; and (3) “appear ‘on the
face of the record,’ i.e., the reviewing court must not need to
go outside the record to identify the error or choose between
competing inferences, and the facts constituting the error
must be irrefutable.” Ailes v. Portland Meadows, Inc., 312
Or 376, 381-82, 823 P2d 956 (1991). If the plain-error test is
satisfied, we must then determine whether to exercise our
discretion to review the error. Id. at 382. “A court’s decision
to recognize unpreserved or unraised error in this manner
should be made with utmost caution.” Id.Assuming that the legal error is apparent on the
face of the record, we do not exercise our discretion to cor-
rect the claimed error. Appellant has not suggested that
the outcome of this case depends in any way on the identi-
fied error, nor does our own review of the record reveal how
appellant was harmed by the lack of a citation. Appellant
was represented by counsel at least as early as three days
after the court issued its order for the issuance of a citation
for a commitment hearing, the appointment of counsel, and
a warrant of detention. When appellant’s counsel agreed
to a postponement of the hearing, there is no indication
that counsel expressed any objection that their client had
not been provided a citation or that the client was unaware
that efforts were proceeding to continue his commitment for
another year. The court told appellant at the hearing that
he had the right to a court-appointed attorney, to subpoena
witnesses, and that it would receive evidence on his behalf.
158 State v. S. R.-N.
And, at the hearing, appellant indicated that he had spo-
ken with his attorney about the proceeding, and appellant’s
attorney never raised any concern that appellant did not
receive a citation or argue that a failure to issue a citation
deprived her client of knowing the nature of the proceed-
ing or affected appellant’s ability to prepare for it. State v.
Inman, 275 Or App 920, 935, 366 P3d 721 (2015), rev den,
359 Or 525 (2016) (“[T]he ease with which any error could
have been avoided or corrected should be a significant factor
in an appellate court’s decision whether to exercise its dis-
cretion to correct a plain, but unpreserved, error.”).
Having reviewed the record of the commitment pro-
ceeding and having considered appellant’s arguments on
appeal, we do not view the lack of a citation as resulting
in a commitment hearing that was less than full and fair.
See State v. K. R. B., 309 Or App 455, 458, 482 P3d 134
(2021) (not exercising discretion to correct an assumed error
to timely provide a citation for an ORS chapter 426 com-
mitment because there was “no basis on which to conclude
that the service of the citation at the commencement of the
hearing caused appellant not to receive the benefits of a full
and fair hearing”); State v. Kerne, 289 Or App 345, 349-50,
410 P3d 369 (2017), rev den, 363 Or 119 (2018) (“One cir-
cumstance in which we will not and cannot exercise our dis-
cretion to correct a plain error is when that error is harm-
less[.]”). We do not accept the state’s concession, which is
based on our case law regarding ORS chapter 426. Although
ORS chapter 426, which provides the procedures for civilly
committing persons alleged to have a mental illness, is a
somewhat analogous statutory scheme to ORS chapter 427,
there are differences in what is required for the issuance
and service of citations. Case law in which we have exer-
cised our plain-error discretion in the context of mental
illness civil commitments under ORS chapter 426 does not
provide the sole basis for our consideration in this appeal,
which arises under ORS chapter 427. See State v. C. P., 310
Or App 631, 639, 486 P3d 845 (2021) (noting the “markedly
different” structure of ORS chapter 427 compared to ORS
chapter 426).
Turning to appellant’s first assignment of error,
we conclude that his argument is foreclosed by our recent
Cite as 318 Or App 154 (2022) 159
decision, C. P., 310 Or App at 639, in which we held that
ORS 427.245(1) requires that, for a person held under a war-
rant of detention, the hearing must occur within seven judi-
cial days after the court issues a citation. Here, appellant,
contending that C. P. was incorrectly decided, argues that,
under ORS 427.245(1) (“If the person is detained pursuant to
ORS 427.255 [allowing for a warrant of detention], the court
shall hold the hearing within seven judicial days.”), the trial
court must hold a commitment hearing within seven judi-
cial days of the date the warrant of detention was issued,
and that the court plainly erred because it failed to do that.
Appellant also argues that the timing of the hearing is not
excused by the postponement because the trial court lacked
authority to postpone the hearing for a period more than 72
hours. See ORS 427.265(4) (“The court may, for good cause,
postpone the hearing for not more than 72 hours to allow
preparation for the hearing and order the continuation of
detention authorized under ORS 427.255 during a postpone-
ment, if requested by the person, the legal counsel, parent
or guardian of the person, an examiner or on the court’s own
motion.”).
We do not believe that appellant’s argument that
C. P. is incorrect is well taken. Appellant does not assert
that our decision was plainly wrong, see State v. Civil, 283
Or App 395, 417, 388 P3d 1185 (2017) (describing our “rigor-
ous” standard for overruling our own precedent, including
that it must be “plainly wrong”), and we therefore decline
to reconsider it. Given that appellant’s argument depends
on the timing of the hearing from the warrant of detention,
and that argument was rejected in C. P., we conclude that
the trial court did not plainly err in conducting the hearing
when it did. To the extent that appellant’s argument rests
on his assertion that the court lacked authority to postpone
the hearing, even if that error is plain, we would not exer-
cise our discretion to correct it because appellant had coun-
sel and agreed to the postponement. See Ingram v. Allen,
273 Or 890, 893, 544 P2d 167 (1975) (party’s acquiescence
invited the error and party cannot complain on appeal).
Finally, we turn to appellant’s third assignment
of error. Appellant points to instances at the beginning of
160 State v. S. R.-N.
the commitment hearing in which the trial court referred
to the proceeding as a hearing to determine whether appel-
lant was a person with a mental illness. In appellant’s view,
that was a violation of ORS 457.265(1), which requires the
trial court to advise the person alleged to have an intellec-
tual disability of the “nature of the proceedings.” Like we
did in the second assignment of error, assuming the court’s
mischaracterization of the proceeding was plain error, we
decline to exercise our discretion to correct it. Although the
trial court was mistaken or misspoke at the beginning of
the hearing, it soon became apparent what the nature of the
proceeding was. Counsel for the state outlined the case for
continued commitment on the basis that appellant’s intel-
lectual disability made him dangerous to himself and others
and made him unable to provide for his basic needs. The
state called witnesses who were clear about their opinion
that appellant’s intellectual disability required continued
commitment. Under those circumstances, we do believe the
court’s initial mischaracterization of the proceeding was
harmless, and we will not reverse the judgment of commit-
ment on a plain-error basis.
With that said, we note that we are not insensitive
to appellant’s due process concerns (for which he does not
develop an argument much beyond pointing to our case law
for ORS chapter 426) regarding the trial court’s apparent
failure to comply with the procedures ORS chapter 427
requires. However, due process “ ‘is not a technical concep-
tion with a fixed content unrelated to time, place and cir-
cumstances,’ Cafeteria Workers v. McElroy, 367 US 886, 895,
81 S Ct 1743, 6 L Ed 2d 1230 (1961), but is instead a flexible
concept that ‘calls for such procedural protections as the par-
ticular situation demands.’ Morrissey v. Brewer, 408 US 471,
481, 92 S Ct 2593, 33 L Ed 2d 484 (1972).” State v. Johansen,
125 Or App 365, 373, 866 P2d 470 (1993), rev den, 319 Or
572 (1994). Among the factors provided by the United States
Supreme Court in Mathews v. Elridge, 424 US 319, 335, 96
S Ct 893, 47 L Ed 2d 18 (1976), to determine what procedural
protections the United States Constitution requires and
whether a disputed procedure provides those protections is
“the risk of an erroneous deprivation of [the private] interest
[affected by the official action] through the procedures used,
Cite as 318 Or App 154 (2022) 161
and the probable value, if any, of additional or substitute
safeguards.” Johansen, 125 Or App at 373.
It bears emphasizing that, although the procedures
set in place for ORS chapter 427 aim to ensure due process,
it is not necessarily true that the failure to satisfy those
procedures denies due process; that is, a constitutionally sig-
nificant deprivation of due process requires an assessment
of the risk that a procedural failure resulted in the commit-
ment. See Mathews, 424 US at 335; cf., e.g., State v. S. J. F.,
247 Or App 321, 326, 269 P3d 83 (2011) (on de novo review,
stating that, for a civil commitment under ORS chapter 426,
the failure of the trial court to provide a person with all of
the information required by ORS 426.100(1) means that the
person did not receive the benefit of a full and fair hear-
ing). In this case, appellant was provided counsel several
days before the hearing and indicated that he and counsel
had spoken, and counsel represented appellant at the com-
mitment hearing, where counsel cross-examined the state’s
witnesses and argued that the evidence was insufficient to
continue appellant’s commitment. We hope—and expect—
that in the course of counsel’s representation of her client
she was aware of appellant’s procedural rights, and that
she discussed those rights with appellant and the nature of
the proceeding. We also note the responsibility of counsel to
raise any due process concerns during commitment proceed-
ings so that arguments and the record may be sufficiently
developed for this court’s review. On this record, it is not
a matter of plain error that appellant’s important liberty
interest was at risk of being erroneously deprived because of
the claimed procedural errors. We therefore affirm.1
Affirmed.
1
It also bears emphasizing that our analysis in this case is based on a plain-
error review standard, on this record, and on the specific arguments made on
appeal. In this case, as noted above, among other facts, appellant was provided
counsel several days before the commitment hearing and discussed the case with
her, appellant’s counsel cross-examined witnesses, and appellant has not sug-
gested that the violation of the citation requirement disadvantaged him. This
opinion should not be read more broadly than that.