State v. K.M. (In re K. M.)
Decision Date | 19 November 2014 |
Docket Number | A151205.,C120018MC |
Citation | 340 P.3d 121,267 Or.App. 1 |
Parties | In the Matter of K. M., Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. K.M., Appellant. |
Court | Oregon Court of Appeals |
Susan D. Isaacs, Beaverton, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
Following a hearing, appellant was determined to be mentally ill on the grounds that she was dangerous to herself and others because of a mental disorder. ORS 426.130.1 On appeal, appellant contends that the court plainly erred in failing to sufficiently advise her of her rights under ORS 426.100(1). The state responds that the court did not plainly err because some of the required advice was given, and appellant was otherwise advised by her counsel about the nature of the proceedings. We agree with appellant that the trial court plainly erred in failing to advise her of all of her rights under ORS 426.100(1), and the record does not demonstrate that the harm was mitigated by appellant's counsel's actions. We exercise our discretion to correct the error and reverse the judgment of commitment. Because we reverse the judgment on that basis, we do not address appellant's assignment of error on the sufficiency of the evidence to support the involuntary commitment.
The procedural facts necessary to frame the issue on appeal are few. Appellant suffered a traumatic brain injury when she was 16 years old and, in the succeeding years, has had short-term memory loss, extreme mood disorders, and behavioral problems. She has been hospitalized several times to treat her delusions and psychoses. She was placed in a hospital hold by a physician in early 2012 and cited to appear at a commitment hearing. The court appointed counsel for appellant on the day of the hearing and opened the proceeding with the following declarations:
Appellant contends that the court's advice to her did not comply with ORS 426.100, that the court's error is apparent on the record, and that we should exercise our discretion to correct that plain error under Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (1991).2
ORS 426.100(1) provides:
We explained the function of the required advisements under ORS 426.100(1) in State v. May, 131 Or.App. 570, 571, 888 P.2d 14 (1994) :
Here, the court plainly erred in not giving the advice required under ORS 426.100(1). Appellant was not advised of the possible results of the proceeding, her right to subpoena witnesses, and her rights regarding representation by counsel. The failure to provide any one of the advisements required under ORS 426.100(1) is plain error. See S.J.F., 247 Or.App. at 326, 269 P.3d 83 ( ); State v. Z.A.B., 264 Or.App. 779, 780, 334 P.3d 480, adh'd to as modified on recons., 266 Or.App. 708, 338 P.3d 802, 2014 WL 5473850 (2014) ( ); State v. B.T., 262 Or.App. 323, 323 P.3d 993 (2014) (same). As a whole, the advice did not provide appellant “with sufficiently productively usable information to enable [her] to take the actions necessary to protect * * * her interests.” State v. A.L.B., 166 Or.App. 552, 556, 999 P.2d 541 (2000), rev. dismissed, 335 Or. 142, 61 P.3d 938 (2002).
The state argues, nonetheless, that the error was harmless in this case because it is inferable from the record that appellant was advised of her rights by her attorney. In determining whether the failure to provide the information required by ORS 426.100(1) is harmless, “we focus on whether the appellant received all of the information from another source.” State v. M.L.R., 256 Or.App. 566, 571, 303 P.3d 954 (2013).
Toward the end of the hearing, the court remarked:
We do not infer from the court's passing reference to “discussions with [appellant's] attorney” about a possible outcome of the proceeding that appellant received all of the information required by the statute. That appellant was given some advice by her attorney says nothing about whether she was completely advised of her rights under ORS 426.100(1).
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State v. S. M. B. (In re S. M. B.), A164738
...to advise appellant of her rights as required by ORS 426.100(1) is plain error and requires reversal. See, e.g. , State v. K. M. , 267 Or. App. 1, 7, 340 P.3d 121 (2014) (concluding that failure to advise appellant of her rights under ORS 426.100(1) is plain error and exercising discretion ......