State v. D. M.

                               561

           Submitted October 1, reversed November 3, 2021


                 In the Matter of D. M.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                          D. M.,
                        Appellant.
             Umatilla County Circuit Court
                  21CC02678; A176082
                            

  Eva J. Temple, Judge.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Reversed.
562                                              State v. D. M.

        PER CURIAM
          Appellant appeals a judgment committing him to
the Oregon Health Authority for a period not to exceed 180
days and an order prohibiting him from purchasing or possessing firearms, based on a finding of mental illness. He
contends that he is entitled to reversal because the record
contains no return of service showing that he had been
served with the citation before the hearing, as required by
ORS 426.080 and ORS 426.090. Although appellant did not
preserve that argument, he contends that this constitutes
plain error. The state concedes that neither the trial court
file nor the transcript of the hearing contains any evidence
that appellant was served with the citation, and that appellant is entitled to reversal as this qualifies as plain error.
We agree and accept the state’s concession. ORS 426.090
requires the court to issue a citation that informs a person
alleged to have a mental illness of specific rights, and ORS
426.080 specifies that the person serving the 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.”
See State v. J. R. W., 

, 

 (2020)
(reversing as plain error in same circumstances); State v.
R. E. J., 

, 

 (2020) (same). For the
reasons set forth in J. R. W. and R. E. J., we exercise our
discretion to correct the error.
        Reversed.