317 ORAPP 367 - State v. R. M. G.

                               367

           Submitted January 5, reversed February 2, 2022


                In the Matter of R. M. G.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                        R. M. G.,
                        Appellant.
              Jackson County Circuit Court
                  21CC01889; A175921

504 P3d 709



  Kelly W. Ravassipour, Judge.
   Joseph R. DeBin and Multnomah Defenders, Inc. filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
  Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeHoog, Judge pro tempore.
  PER CURIAM
  Reversed.
368                                          State v. R. M. G.

        PER CURIAM
          Appellant seeks reversal of a judgment committing
him to the custody of the Mental Health Division for a period
not to exceed 180 days. ORS 426.130. In his only assignment
of error, appellant contends that the trial court plainly erred
in failing to dismiss the case when the commitment hearing
was not held within five judicial days of the director’s hold
on appellant and the required procedures for filing a certificate of diversion were not complied with. See ORS 426.237.
In response, the state concedes that the trial court plainly
erred when it did not dismiss appellant’s case; however, citing Dept. of Human Services v. E. L. G.,

270 Or App 308

347 P3d 825

 (2015), the state asks us not to exercise our
discretion to correct the error, because, in its view, appellant “encouraged” the legal error that the trial court made
and may have had a strategic reason not to object to the
untimely hearing.
         We accept the concession as to the trial court’s plain
error, but we reject the state’s request that we not correct
it. Holding appellant for more than five judicial days was a
grave error. See State v. R. A. R.,

294 Or App 387, 388

427 P3d 234

 (2018) (it was a grave error to hold appellant longer
than five days when appellant’s attorney had not consented
to diversion); State v. E. R.,

283 Or App 282, 283

387 P3d 497

 (2016) (holding the appellant for eight judicial days longer than what was permissible was grave error). Moreover,
although we agree that the question of whether appellant
encouraged the court’s error or had a strategic reason not to
object are appropriate considerations in deciding whether to
correct it, we disagree that those factors are present here.
We therefore exercise our discretion to correct the error and,
consequently, reverse the judgment. See State v. L. R.,

313 Or App 157, 158

490 P3d 188

 (2021) (reversing commitment
when appellant held more than five days and diversion procedures not followed).
        Reversed.