34
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 28, 2021, affirmed July 20, 2022
In the Matter of C. B. P.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
C. B. P.,
Appellant.
Malheur County Circuit Court
20CC06237; A175036
Erin K. Landis, Judge.
Alexander Cambier 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 Kamins, Presiding Judge, and Lagesen, Chief Judge,
and Joyce, Judge.
JOYCE, J.
Affirmed.
Nonprecedential Memo Op: 321 Or App 34 (2022) 35
JOYCE, J.
Appellant appeals a judgment of involuntary civil
commitment and a firearms-prohibition order based upon a
finding that appellant has a mental illness. He argues that
the trial court committed plain error in ordering a second
postponement of his civil commitment hearing. We affirm.
The relevant facts are procedural and undisputed.
Appellant’s civil commitment hearing was set on the fourth
judicial day after he was placed on a hospital hold. At the
hearing, appellant refused to appear. His counsel requested
a continuance “for more time to work with [appellant] and
prepare for this case.” The trial court granted that postponement.
At the next scheduled hearing, hospital staff
reported that appellant had “decided not to appear to court
because he asked for a different attorney.” Appellant’s counsel told the court that appellant had remembered him from
a previous representation and refused to work with him
again. The court ordered a second postponement, finding
that “there’s a good basis to continue to make sure” that
appellant had “effective assistance of counsel.”
The trial court held a full commitment hearing at
the next setting, during which appellant was present with
the assistance of counsel. The trial court ultimately found
appellant had a mental illness that made him dangerous to
himself or others and entered an order of commitment.
On appeal, appellant raises a single assignment of
error, arguing that the trial court erred by failing to dismiss the case when appellant’s civil commitment hearing
occurred more than five judicial days after appellant’s initial requested postponement. Specifically, appellant argues
that the trial court’s second postponement was unlawful
because ORS 426.095(2)(c) does not authorize a court to
postpone a civil commitment hearing on its own motion or
beyond five judicial days. Appellant acknowledges that his
claim is unpreserved but asks we review it as plain error.
See ORAP 5.45(1) (as an exception to the general appellate
requirement of preservation, “the appellate court may, in its
discretion, consider a plain error”); State v. Dilallo, 367 Or
36 State v. C. B. P.
340, 344,
478 P3d 509 (2020) (an error is “plain” if it is an
error of law, is obvious and not reasonably in dispute, and
is apparent from the record without our needing to choose
among competing inferences). Because we conclude that the
trial court did not commit plain error, we affirm.
A physician may detain a person for emergency care
or treatment for mental illness, provided that the physician
immediately notifies certain specified local mental health
personnel. ORS 426.232(2). However, the person may not
be held for longer than five judicial days without a hearing
except in certain circumstances. See ORS 426.232(2); ORS
426.234(4); ORS 426.095(2). One circumstance is that the
court “for good cause, may postpone the hearing for not more
than five judicial days in order to allow preparation for the
hearing,” when requested by qualifying parties, including
the person alleged to have mental illness. ORS 426.095(2)(c)
(“If a person is detained before a hearing … and the hearing is postponed under this paragraph, the court, for good
cause, may allow the person to be detained during the postponement if the postponement is requested by the person or
the legal counsel of the person.”).
As an initial matter, the record does not demonstrate—
without a need to choose between competing inferences—
that it was the trial court, as appellant suggests, that postponed the hearing the second time on its own motion. An
equally plausible inference is that the trial court postponed
the hearing at appellant’s request, as permitted under ORS
426.095(2)(c).1 At the second setting of the commitment
hearing, hospital staff reported that appellant refused to
appear “because [appellant] asked for a different lawyer.”
(Emphasis added.) In ordering the postponement, the trial
court noted that “if a person won’t talk to his attorney and
that there’s actually a historical basis for that reason,” it
constituted a good cause basis to postpone the hearing to
make sure that appellant “has effective assistance of counsel.” We are thus confronted with competing inferences that
render appellant’s claim of error unreviewable as plain
error: It is not clear whether the trial court ordered the
1
As discussed below, appellant’s argument that more than one postponement is not permitted under the statute is also not reviewable as plain error.
Nonprecedential Memo Op: 321 Or App 34 (2022) 37
second postponement to facilitate appellant’s request for the
purpose of appointing a new attorney to represent him or
whether, as appellant contends, the trial court ordered the
postponement on its own motion.
In all events, it is not obvious and beyond reasonable dispute that ORS 426.095(2) compels the interpretation
appellant argues, namely, that the court can only grant a
single five-day postponement of a commitment hearing. ORS
426.095(2) provides that the trial court, “for good cause, may
postpone the hearing for not more than five judicial days in
order to allow preparation for the hearing” when requested
by a qualifying party. That text—that the trial court “may
postpone the hearing for not more than five judicial days”—
can also be read to mean, as the state argues, that multiple
postponements are allowed as long as each single postponement does not exceed five days. Appellant’s claim of error is
thus not “obvious” as necessary for plain error. See, e.g., Dept.
of Human Services v. M. E., 297 Or App 233, 244,
441 P3d
713 (2019) (error is not plain when an unpreserved claim of
error poses an open question of statutory construction, and
no appellate case has addressed).
Finally, even if we were to conclude that the trial
court committed plain error, we would decline to exercise
our discretion to correct it in these circumstances. Dilallo,
367 Or at 344 (if the court committed a plain error, we must
decide whether to exercise our discretion to correct it). We
correct unpreserved errors with “utmost caution,” State v.
Benson,
246 Or App 262, 267,
265 P3d 58 (2011), considering various factors, including “the gravity of the error” and
“the ends of justice in the particular case,” Ailes v. Portland
Meadows, Inc.,
312 Or 376, 382 n 6,
823 P2d 956 (1991).
At the second scheduled hearing, appellant refused
to appear because he wanted a different attorney. Although
the court has the authority to move forward with the hearing
in the appellant’s absence, the trial court chose to facilitate
appellant’s request for new counsel. See ORS 426.070(5)(a)
(recognizing a trial court’s authority to move forward with
a commitment hearing in absence of an allegedly mentally
ill person who “fails to appear”). At the next setting of the
hearing, appellant was present and received the assistance
38 State v. C. B. P.
of counsel. Under such circumstances, we find that appellant’s alleged claim of error was not grave, and we are not
persuaded that the ends of justice require us to correct any
error.
Affirmed.
