State v. S. R.-N. (In re S. R.-N.), A175900

• Court: Court of Appeals of Oregon
• Writing for the Court: TOOKEY, P. J.
• Citation: 318 Or.App. 154
• Parties: In the Matter of S. R.-N., a Person Alleged to have Intellectual Disabilities. v. S. R.-N., Appellant. STATE OF OREGON, Respondent,
• Docket Number: A175900
• Decision Date: 09 March 2022

318 Or.App. 154

In the Matter of S. R.-N., a Person Alleged to have Intellectual Disabilities.

STATE OF OREGON, Respondent,
v.
S. R.-N., Appellant.

A175900

Court of Appeals of Oregon

March 9, 2022

Submitted December 3, 2021

Marion County Circuit Court 19CC00185; Keith R. Raines, Senior Judge.

Alexander C. Cambier and Multnomah Defenders, Inc., fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, fled the brief for respondent.

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

1

[318 Or.App. 155] TOOKEY, P. J.

This is an appeal of a judgment committing appellant 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 himself and others and that he was unable to provide for his basic personal needs. ORS 427.215; ORS 427.290. His challenge to the civil commitment is not a challenge to the merits, 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 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).

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 commitment hearing, appellant had been previously committed 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 representatives from SACU petitioned the circuit court to continue appellant's commitment for one more year. ORS 427.235(1).

2

[318 Or.App. 156] On February 12, 2021, the trial court found the notice sufficient to show the need for investigation and forwarded the notice to the community developmental disabilities director for Marion County. An investigator for the county investigated the need for appellant's continued commitment and issued a report recommending continued commitment. On March 16, 2021, the court found that there was probable 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

3

[318 Or.App. 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 citation to issue to a person alleged to need residential care, treatment, and training because of an intellectual disability. 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...