State v. D. B. J.

No. 321                 May 15, 2024                  607

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 In the Matter of D. B. J.,
          a Person Alleged to have Mental Illness.
                   STATE OF OREGON,
                        Respondent,
                             v.
                          D. B. J.,
                         Appellant.
             Multnomah County Circuit Court
                   23CC03452; A181724

  Jane W. Fox, Judge.
  Argued and submitted April 12, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Lagesen, Chief Judge,
and Pagán, Judge.
  LAGESEN, C. J.
  Affirmed.
608                                                        State v. D. B. J.

         LAGESEN, C. J.
         Appellant appeals a judgment involuntarily committing him to the Oregon Health Authority for up to 180
days based on the trial court’s finding that, as a result of a
mental disorder, he is unable to meet his basic needs. See
ORS 426.005(1)(f)(B). Appellant contends that, because
he was detained on an emergency basis for a week before
his hearing, ORS 426.100(3)(e) required the trial court to
appoint counsel sooner than it did. Although appellant did
not preserve the issue, he asserts that it amounts to reversible plain error. We affirm.
         Appellant, as noted, was detained on an emergency
basis under ORS 426.232 for a week before his commitment hearing. With respect to a person detained before a
commitment hearing, ORS 426.100(3)(e) provides that “the
right … to contact an attorney or … to have an attorney appointed may be exercised as soon as reasonably possible.” That provision, according to appellant, required the
trial court to appoint counsel earlier than it did; the court
appointed counsel either the day before or the day of trial.1
Based on that proposed reading of ORS 426.100(3)(e), appellant contends that the trial court plainly erred by appointing counsel so late.
         We disagree. “For an error to be plain error, it must
be an error of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to
choose among competing inferences.” State v. Vanornum,

, 

 (2013). On this record, it is
not obvious that ORS 426.100(3)(e) required the court to
appoint counsel earlier than it did. The text does not impose
a specific timeframe for the appointment of counsel, but simply provides for the exercise of the right “as soon as reasonably possible.” Additionally, as the state points out, the
passive phrasing of the provision—that the right “may be
exercised”—suggests that the statute may require some
affirmative action by the detained person to exercise the
right to counsel. Here, there is no indication that appellant
attempted to exercise his right to counsel before the court
appointed counsel. Under the circumstances, it is not plain
   1
       The record contains discrepancies as to when the court appointed counsel.
Nonprecedential Memo Op: 

 (2024)                            609

that the trial court’s appointment process was erroneous
under ORS 426.100(3)(e).2
           Affirmed.




    2
      Appellant’s argument to us rests on ORS 426.100(3)(e); as a result, we do
not consider whether other statutes may have required the trial court to appoint
counsel more promptly.