State v. K. R. B. (In re K. R. B.)

• Decision Date: 03 March 2021
• Docket Number: A169515
• Citation: 309 Or.App. 455,482 P.3d 134
• Parties: In the MATTER OF K. R. B., a Person Alleged to have Mental Illness. State of Oregon, Respondent, v. K. R. B., Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 455

482 P.3d 134

In the MATTER OF K. R. B., a Person Alleged to have Mental Illness.State of Oregon, Respondent,

v.K. R. B., Appellant.

A169515

Court of Appeals of Oregon.

Submitted November 8, 2019

March 3, 2021

Joseph R. DeBin, Portland and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

Appellant appeals a judgment committing him to the custody of the Mental Health Division for a period not to exceed 180 days, ORS 426.130(1)(a)(C), based on the trial court's determination that appellant is a person who, because of mental illness, cannot care for his basic needs and would not comply with voluntary treatment.

ORS 426.005(1)(f)(B) (defining a person with mental illness). Appellant does not challenge the determination that he has mental illness. He contends only that the judgment should be reversed because the court erred in failing to serve him with a citation before the hearing, as required by ORS 426.090. Appellant acknowledges that he did not preserve his assignment of error but asks that we review and correct the error as plain error. ORAP 5.45(1).

Under ORS 426.090, the trial court is required to issue and serve a citation on a person alleged to have a mental illness "prior to the hearing":

"The judge shall issue a citation to the person alleged to have a mental illness stating the nature of the information filed concerning the person and the specific reasons the person is believed to be a person with mental illness. The citation shall further contain a notice of the time and place of the commitment hearing, 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 immediately appointed, the right to subpoena witnesses in behalf of the person to the hearing and other information as the court may direct. The 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. The person shall have an opportunity to consult with legal counsel prior to being brought before the court."

We have recently held that a failure to serve a citation before the hearing is plain error. State v. R. E. J ., 306 Or. App. 647, 474 P.3d 461 (2020) ; State v. R. E. F. , 299 Or. App. 199, 447 P.3d 56 (2019).

Here, the court served appellant with a citation and an attached investigation report at the start of the hearing. Appellant contends that the court's error is plain, because the citation was not served before the hearing and, in the interests of due process, should have been served no later than 24 hours before the hearing, and that we should exercise our discretion to review and correct the error.

We have in the past exercised our discretion to review as plain error a failure to issue or properly serve the citation required by ORS 426.090. In R. E. J. , although the citation had issued, there was no evidence that the appellant had been served with it. We exercised our discretion to correct the error in failing to serve the citation, in light of the seriousness of civil commitment proceedings, the gravity of the violation when the record does not disclose whether the appellant received the information and protections provided by ORS 426.090 before the start of the hearing, and the ends of justice. 306 Or. App. at 649, 474 P.3d 461. In R. E. F. , we cited the same grounds for exercising our discretion to review plain error where the record did not show that a citation had been issued, noting that the appellant had not been advised, before the taking of evidence against him, of the information required to be included in the citation—"the nature of the information filed concerning the person and the specific reasons the person is believed to be a person with mental illness." 299 Or. App. at 201, 447 P.3d 56. See also State v. J. R. W. , 307 Or. App. 372, 475 P.3d 138 (2020) (exercising discretion to review as plain error failure to serve citation); State v. S. J. F., 247 Or. App. 321, 325-26, 269 P.3d 83 (2011) (plain error review of violations of ORS 426.100(1), requiring advice of rights, "is justified by the nature of...