State v. J. R.

                                752

        Submitted November 8, 2019, affirmed December 2, 2020


                  In the Matter of J. R.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                          J. R.,
                        Appellant.
            Multnomah County Circuit Court
                  18CC02825; A169514
                            

  Janet A. Klapstein, Judge pro tempore.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2020)                              753

        PER CURIAM
          Appellant appeals the trial court’s order that continued appellant’s civil commitment to the Oregon Health
Authority (OHA) for a period of time not to exceed 180 days.
ORS 426.301 (providing that a person committed must be
released at the end of 180 days unless OHA certifies to the
court that “the person is still a person with mental illness
and is in need of further treatment” and setting out a procedure that allows the person to protest the continued commitment). Appellant argues that it was plain error for the court
to fail to advise him that he was entitled to have the court
appoint a physician to examine him at the court’s expense.
ORS 426.303 (a person who protests continued commitment
must be informed of rights set out in ORS 426.301); ORS
426.301(3)(g) (a person is entitled to an examination by a
physician (or qualified professional) who is not a member of
the facility confining the person); ORS 426.301(3)(h) (trial
court will appoint an outside physician (or qualified professional) if the person protesting continued commitment cannot afford one).
         The state concedes that the trial court error plainly
erred but does not concede that we should exercise our discretion to correct the error. In the state’s view, the error was
harmless. That is because appellant received a notice that
stated that the OHA intended to continue his commitment
and that appellant was entitled, at no cost to appellant,
to an examination by a physician from outside the facility
confining him. The server who delivered the notice read to
appellant those statutory rights.
         We agree with the state. We decided a virtually
identical issue in State v. T. W., 

, 

 (2019). There, relying on State v. Ritzman, 

, 

 (2004), we held that the trial
court’s error in failing to advise the appellant of his right to
have a physician appointed at court expense was harmless
because the appellant had been adequately informed of his
rights when served with the notice, and we therefore did not
exercise our discretion to correct the error. T. W., 

 (citing State v. Kerne, 

, 

 (2017), rev den, 

 (2018) (“One circumstance
754                                              State v. J. R.

in which we will not and cannot exercise our discretion to
correct a plain error is when that error is harmless[.]”)). We
likewise in this case do not exercise our discretion to correct
the plain error, and we affirm the continued commitment
order.
        Affirmed.