State v. J. R. W.

                               372

          Submitted September 4, reversed October 21, 2020


                In the Matter of J. R. W.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                             v.
                         J. R. W.,
                        Appellant.
               Linn County Circuit Court
                  20CC00499; A173590
                            

  Michael B. Wynhausen, Judge.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Reversed.
Cite as 

 (2020)                              373

        PER CURIAM
         Appellant appeals a judgment committing him to
the Mental Health Division for a period not to exceed 180
days, and an order prohibiting him from purchasing or possessing firearms. Appellant contends he is entitled to reversal because the record does not demonstrate that the citation required to issue pursuant to ORS 426.090 was served
on him. That statute requires a court to issue a citation to
an allegedly mentally ill person that contains information
including “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,” as well as “the right to subpoena witnesses
in behalf of the person to the hearing.” That statute also
requires that “[t]he 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.” ORS 426.080 specifies that the person serving such a citation “shall, immediately after service thereof, make a return upon the original
warrant or citation showing the time, place and manner of
such service and file it with the clerk of the court.” Appellant
contends that the lack of a certificate of service in the record
constitutes plain error. Pointing to our decision in State v.
R. E. F., 

, 

 (2019), the
state agrees and concedes the error.
         We accept the concession. Much as in R. E. F., we
agree that the failure to comply with ORS 426.080 and ORS
426.090 constitutes plain error in this case as well. In light
of the gravity of the error, we exercise our discretion to correct the error. See generally Ailes v. Portland Meadows, Inc.,

, 

 (1991) (setting out factors
to consider in the exercise of discretion).
        Reversed.