State v. Z.A.B. (In re Z.A.B.)
Decision Date | 13 August 2014 |
Docket Number | 14MH0001,A156148. |
Citation | 264 Or.App. 779,334 P.3d 480 (Mem) |
Parties | In the Matter of Z.A.B., Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Z.A.B., Appellant. |
Court | Oregon Court of Appeals |
Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael R. Salvas, Assistant Attorney General, filed the brief for respondent.
Before LAGESEN, Presiding Judge, and TOOKEY, Judge, and EDMONDS, Senior Judge.
Appellant seeks reversal of a judgment committing him for a period not to exceed 180 days pursuant to ORS 426.130. Appellant argues, among other contentions, that the trial court plainly erred by failing to advise him of the right to subpoena witnesses under ORS 426.100(1)(d). See State v. M.L.R., 256 Or.App. 566, 570–71, 303 P.3d 954 (2013) ( ); State v. Grellert, 144 Or.App. 201, 203, 925 P.2d 161 (1996) ( ). Appellant acknowledges that the trial court told him that he had “the right to call [his] own witnesses,” but asserts that that statement did not inform him that he had the right to compulsory process. The state concedes that, under our case law, the trial court “committed plain error by failing to precisely advise appellant of that right” to subpoena witnesses. We accept the state's concession that the failure to advise appellant of the right to subpoena witnesses constitutes plain error and, for the reasons set forth in M.L.R., exercise our discretion to correct the error. See also State v. V.B., 264 Or.App. 621, 623, 333 P3d 1100, 1102 2014 WL 3953634 (Aug. 13, 2014) ( ).
Reversed.
I concur in the disposition of this appeal on the ground that our precedent dictates the result that we reach. I write separately for two reasons: (1) to clarify the nature of the trial court's error in this case, so that similar errors can be avoided in the future; and (2) to ensure that our dispositions in this case and those similar to it do not inadvertently result in allegedly mentally ill persons receiving less helpful information about their rights than that provided by the trial court in this instance.
As noted, the trial court told appellant, “[Y]ou have the right to call your own witnesses.” As I understand our precedent, we have deemed that advice inadequate under ORS 426.100(1)(d) because it does not convey the scope of the subpoena power. That is, advice that a person can “call” witnesses does not convey the right to have the court order the attendance and testimony of material witnesses. For that reason, we have concluded (and the state often has conceded) that that advice, or advice similar to it, does not satisfy ORS 426.100(1)(d). See State v. Grellert, 144 Or.App. 201, 203, 925 P.2d 161 (1996) ; Respondent's Answering Brief at 2–3, State v. B.H., 264 Or.App. 186, 329 P.3d 813 (2014) ( ); B.H., 264 Or.App. at 187, 329 P.3d 813 (accepting concession); Respondent's Answering Brief at 2, State v. T.N., 262 Or.App. 499, 323 P.3d 997 (2014) ( ); T.N., 262 Or.App. at 500, 323 P.3d 997 (accepting concession).
That brings me to my second point. I question the extent to which the word “subpoena” conveys useful information to persons without legal training. I also have little doubt that the trial court here employed the word “call” instead of “subpoena” in order to convey appellant's rights to him in an understandable form. Indeed, in explaining the civil commitment process, the guidebook on mental health...
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State v. K.M. (In re K. M.)
...to provide “all of the information required by ORS 426.100(1) ” denies the benefit of a full and fair hearing); 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) (failure to advise of right to subpoena......
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State v. D.B. (In re D.B.)
...despite an appellant's failure to raise and preserve it at the hearing.” (Internal quotation marks omitted.)); 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) (failure to advise of right to subpoena witnesses alone c......
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State v. J. D. P. (In re J. D. P.), A163511
..."the trial court's failure to advise appellant of all of the possible results of the proceedings was plain error"); 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) (failure to inform a person of the right to subp......
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State v. R. C. S. (In re R. C. S.), A165507
...trial court plainly erred by failing to advise her of the right to subpoena witnesses under ORS 426.100(1)(d). See 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) (failure to inform a person of the right to sub......