State v. Burge

• Citation: 1 P.3d 490,167 Or. App. 312
• Parties: In the Matter of Devin Burge, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Devin BURGE, Appellant.
• Decision Date: 17 May 2000
• Court: Court of Appeals of Oregon

1 P.3d 490

167 Or. App. 312

In the Matter of Devin Burge, Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent, v. Devin BURGE, Appellant.

(98-05-1567; CA A102441)

Court of Appeals of Oregon.

Argued and Submitted January 20, 2000.

Decided May 17, 2000.

Bob Pangburn argued the cause and filed the brief for appellant.

Lainie Block, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and John T. Bagg, Assistant Attorney General.

Before HASELTON, Presiding Judge, and EDMONDS and WOLLHEIM, Judges.

HASELTON, P.J.

Appellant seeks reversal of an order adjudicating him to be chronically mentally ill, ORS 426.005(1)(d)(C), as well as a danger to himself or others, ORS 426.005(1)(d)(A), and committing him to the Oregon Mental Health and Developmental Disability Services Division. The state concedes that the trial court erred in failing to advise appellant of his rights under ORS 426.100(1),¹ notwithstanding his counsel's ostensible "waiver" of advice of rights. As explained below, we accept the state's concession of error and reverse.

At the commitment hearing, the following colloquy occurred:

"THE COURT: Mr. Birnbaum I have an advice of rights form. Do you want me to read that to him or would you waive?

"MR. BIRNBAUM [Appellant's Counsel]: Your Honor I'll waive the reading of the advice of rights but Mr. Burge has asked me to point out to the Court that he's been in custody more than five days and that he was suppose to have been let out, this hearing was supposed to [be] held with[in] five days and he's indicated that he would like to put on the record that he—he needs to, that the case should be dismissed.

"THE COURT: Alright, it's so noted."

The court, after receiving evidence, subsequently entered the order of commitment.

On appeal, appellant contends that the trial court erred in determining him to be chronically mentally ill, because he was not interviewed by a mental health investigator before the commitment hearing. The state disputes that issue but concedes that "this case should be reversed and remanded based upon the trial court's failure to fully advise appellant of his rights under ORS 426.100." We accept the state's concession and, consequently, do not reach and address appellant's arguments. Cf. State v. Jones, 129 Or.App. 413, 416, 879 P.2d 881 (1994)

; id. at 417, 879 P.2d 881 (Riggs, J., concurring); id. at 419, 879 P.2d 881 (Haselton, J., concurring) (addressing effect of state's concession of error on court's exercise of discretion to reach and correct "plain error" under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991)).

The trial court's failure to advise appellant of his rights under ORS 426.100(1) was "an error of law apparent on the face of the record." ORAP 5.45(2). See State v. May, 131 Or.App. 570, 888 P.2d 14 (1994); State v. Allison, 129 Or.App. 47, 877 P.2d 660 (1994). In May, we considered whether a lawyer's failure to object to the court's failure to advise the allegedly mentally ill person of her hearing rights waived any error in that regard. We concluded that it did not:

"[A] lawyer's failure to object, standing alone, does not constitute a waiver of the right to be advised of the rights pertaining to the conduct of a civil mental commitment hearing. Those are mandatory advisements specifically designed to ensure that the alleged mentally ill person receives the benefits of a full and fair hearing. The court must either advise the alleged mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made. Here, the court neither advised appellant nor conducted any such examination." May, 131 Or.App. at 571, 888 P.2d 14 (emphasis added).

The same principle controls here. Although the alleged "waiver" in May was silent, and the "waiver" here was oral, May's holding is unconditional: When faced with an ostensible waiver of the explanation of rights under ORS 426.100(1), "[t]he court must * * * conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made." Id. at 571, 888 P.2d 14 (emphasis added).² Here, the trial court failed to do so.

We note, moreover, that, given May, counsel's "waiver" differed materially from the appellant's stipulation to commitment in State v. Waters, 165 Or.App. 645, 997 P.2d 279 (2000). In Waters, the stipulation pertained to the sufficiency of evidence to support commitment and did not encompass a waiver of the recitation of the appellant's hearing rights. We declined to consider the appellant's unpreserved challenges to that stipulation, observing, inter alia:

"Those alleged errors are exactly the type of errors that never would have occurred had appellant not affirmatively invited them. In other words, no stipulation could have occurred had appellant or his counsel questioned the propriety of such a stipulation in the trial court." 165 Or.App. at 651, 997 P.2d 279.

Here, in contrast, counsel's expression of "waiver" merely triggered the court's ensuing obligation under May to conduct the prescribed "examination of the record" into whether waiver was, in fact, knowing and voluntary. That is, when faced with counsel's ostensible waiver of the advice of rights, the court had an independent judicial obligation to inquire of appellant as to the voluntariness of that purported "waiver." Without that inquiry, the "waiver" was ineffective, and the court was required to advise appellant of his rights.

The trial court failed either to "conduct [the] examination on the record" prescribed in May or to inform appellant of his rights. That was reversible error. See May, 131 Or.App. at 571, 888 P.2d 14.³

Reversed.

EDMONDS, J., dissenting.

The state concedes that the advice required by ORS 426.100(1)⁴ was not given in this case. The remaining question is whether the requirement under the statute was waived, so that the involuntary commitment order should be affirmed. A "waiver" is a voluntary relinquishment of a known right. When a right under a statute is waived, the effect is to satisfy the purpose of the statute. The purpose of ORS 426.100(1) is "to ensure that all allegedly mentally ill persons get the benefit of a full and fair hearing before that person is committed." State v. Allison, 129 Or.App. 47, 50, 877 P.2d 660 (1994).⁵

The majority holds that the legislature intended that no waiver by counsel of an alleged mentally ill person of an explanation of rights under ORS 426.100(1) even in the presence of the alleged mentally ill person will ever be effective in an involuntary mental commitment hearing. According to the majority, the trial court must either give the advice in the language of the statute or make an inquiry of the alleged mentally ill person to ascertain that he or she is aware of the rights under the statute and that the person gives them up voluntarily before the requirement under the statute is deemed waived.

The majority's holding in this case and our opinion in State v. Buffum, 166 Or.App. 552, 999 P.2d 541 (2000), reach inconsistent interpretations of ORS 426.100(1) about the role of an alleged mentally ill person's counsel in an involuntary commitment proceeding. In Buffum, the alleged mentally ill person argued that the advice that the court gave her was insufficient to satisfy ORS 426.100(1) because it did not advise her of what the state had to prove in order to demonstrate that she was "mentally ill" for purposes of an involuntary commitment. The trial court told the alleged mentally ill person that "[i]t will be the state's burden of showing that you are mentally ill, as that expression is defined in the statutes." We held that advice sufficient under ORS 426.100(1) because her counsel could explain the requirements of the law to her.

"Further, ORS 426.100(1) must be viewed as part of a complex statutory scheme that serves to protect the rights of allegedly mentally ill persons and not as the sole source of protection. Most importantly, ORS 426.100(3) provides for the right to representation by and appointment of qualified counsel—a right that is virtually more difficult to waive than is the corresponding right of defendants in criminal cases. It belabors the obvious to say that an attorney who, in the words of ORS 426.100(3)(a), must possess `skills and experience commensurate with the nature of the allegations and the complexity of the case,' will be fully aware of the legal and evidentiary particulars that the majority holds the court must include in its preliminary advice to the allegedly mentally ill layperson." Buffum, 166 Or.App. at 556,999 P.2d 541.

Our holding in Buffum necessarily implies that the advice from an alleged mentally ill person's counsel can supplant the advice under ORS 426.100(1) when the person is informed of the substantive requirements for an involuntary mental commitment.⁶ But under the majority's ruling, the waiver of an alleged mentally ill person as to the advice of rights required under ORS 426.100(1) spoken through the lips of counsel while in the presence of the alleged mentally ill person is without efficacy. The majority provides no rationale for its holding other than its reliance on State v. May, 131 Or.App. 570, 888 P.2d 14 (1994), for why the legislature would have contemplated such a distinction, and I am aware of none. May is a per curiam opinion in which the state conceded that, under Allison, the trial court was required to give the advice under the statute. However, the state contended that the trial court's failure was waived by the alleged mentally ill person's counsel's silence when he did not make any objection to the continuation of the proceeding. We rejected that argument, saying that the court was required either to...