349
This is a nonprecedential memorandum opinion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 January 6, reversed February 23, 2023
In the Matter of A. A. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
A. A. W.,
Appellant.
Multnomah County Circuit Court
22CC01282; A178344
Monica M. Herranz, 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 Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Reversed.
350 State v. A. A. W.
AOYAGI, P. J.
Appellant appeals a judgment committing her to
the custody of the Mental Health Division for a period not
to exceed 180 days and an order prohibiting her from possessing or purchasing firearms. ORS 426.130. In her only
assignment of error, appellant asserts that the trial court
plainly erred in failing to dismiss the case, where she was
held for more than five judicial days without a hearing and
without a timely certificate of diversion. The state concedes
the error. We accept the concession, exercise our discretion
to correct the error, and, accordingly, reverse.1
Appellant was placed on a physician’s hold on
Friday, February 25, 2022. A hearing was initially scheduled for Friday, March 4, which would have been the fifth
judicial day. On March 3, a certificate of diversion from commitment was filed pursuant to ORS 426.237, and the court
appointed counsel for appellant on that date. Based on the
diversion, the civil commitment hearing was postponed to
March 14.
A person may be detained on a physician’s hold for
emergency care or treatment of mental illness, but the person may not be held involuntarily for more than five days
without a hearing. ORS 426.232(2) (limiting the hold to “longer than five judicial days”); ORS 426.234(4) (stating that a
person shall not be held under ORS 426.232 “for more than
five judicial days without a hearing”). ORS 426.237 allows
a person to be held for 14 days of intensive treatment, however, if a certificate of diversion is filed within three judicial
days of detention (ORS 426.237(1)(b)), and the person and
the person’s attorney consent to the certification within one
judicial day of when the certificate is delivered to the trial
court (ORS 426.237(3)(c)).
Here, the certificate of diversion was not filed within
three judicial days as required by ORS 426.237(1)(b); rather,
as the state acknowledges, it was filed on the fourth judicial
1
The claim of error is unpreserved. “Generally, an issue not preserved in
the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341,
15 P3d 22 (2000). However, we have discretion to correct a “plain” error. ORAP
5.45(1); State v. Vanornum,
354 Or 614, 629,
317 P3d 889 (2013) (stating requirements for “plain” error).
Nonprecedential Memo Op:
324 Or App 349 (2023) 351
day. Moreover, the record does not establish that appellant
and her attorney consented to the certification as required
by ORS 426.237(3)(c).
“Because the diversion procedures were not properly followed in this case, the requirements for diversion
were not met. As a result, appellant could not be detained
for longer than five judicial days without a hearing, and,
because appellant did not timely receive a hearing, the trial
court was required to dismiss the case.” State v. C. J. W.,
289 Or App 63, 65,
407 P3d 979 (2017). We agree with the
state that the trial court plainly erred in failing to dismiss
the case, and we exercise our discretion to correct the error.
See State v. L. R.,
313 Or App 157, 158,
490 P3d 188 (2021)
(exercising our discretion to correct a similar error “in light
of its gravity”).
Reversed.
