20 September 11, 2024 No. 652
This is a nonprecedential memorandum opinion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 H. C.,
a Person Alleged to have Intellectual Disabilities.
STATE OF OREGON,
Respondent,
v.
H. C.,
Appellant.
Marion County Circuit Court
23CC04197; A182258
Audrey J. Broyles, Judge.
Submitted August 14, 2024.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert A. Koch, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 335 Or App 20 (2024) 21
TOOKEY, P. J.
Appellant, who is alleged to be a person with an
intellectual disability, appeals a judgment committing him
to the Department of Human Services for a period not to
exceed one year, based on the trial court’s determinations
that appellant is a danger to others and is unable to care
for himself. See ORS 427.290. Appellant raises one assignment of error, contending that the trial court plainly erred
when it did not adequately advise him as required under
ORS 427.265(1).1 Having reviewed the record, and assuming without deciding that the trial court plainly erred, we
decline to exercise discretion to correct the error. Therefore,
we affirm.
In his sole assignment of error, appellant contends
that the trial court plainly erred when it “failed to advise
appellant during the proceedings of the nature of the proceedings, what allegations were at issue, and the possible
results of [the] proceedings.”
“For us to correct an error as plain, the claimed
error must be (1) one of law; (2) apparent, i.e., the point must
be obvious, not reasonably in dispute; and (3) appear on the
face of the record, i.e., the reviewing court must not need to
go outside the record to identify the error or choose between
competing inferences, and the facts constituting the error
must be irrefutable.” State v. S. R.-N., 318 Or App 154, 157,
506 P3d 492 (2022) (internal citation and quotation marks
omitted). If we determine that an error is plain, we must
then decide whether to exercise our discretion to review
and correct it; we must make that decision “with utmost
1
ORS 427.265(1) provides:
“At the time that a person who is alleged to have an intellectual disability
and to be in need of commitment for residential care, treatment and training
is brought before the court, the court shall advise the person of the reason for
being brought before the court, the nature of the proceedings and the possible
results of the proceedings. The court shall also advise the person of the right
to subpoena witnesses and to suitable legal counsel possessing skills and
experience commensurate with the nature of the allegations and complexity
of the case during the proceedings, and that if the person does not have funds
with which to retain suitable legal counsel, the court shall appoint such legal
counsel to represent the person. If the person does not request legal counsel, the legal guardian, relative or friend may request the assistance of legal
counsel on behalf of the person.”
22 State v. H. C.
caution.” Ailes v. Portland Meadows, Inc., 312 Or 376, 382,
823 P2d 956 (1991).
Here, assuming without deciding that the trial
court plainly erred in failing to adequately advise appellant
as required under ORS 427.265(1) in the manner that appellant contends, we decline to exercise our discretion to correct
the error. In this case, the trial court advised appellant personally that the purpose of the hearing was to “determine
whether or not [appellant] should remain committed for residential care, treatment, and training,” as he had been prior
to the hearing, and that the court process would involve
“listen[ing] to witnesses to determine whether or not [appellant] should be continued in the place that [appellant is] now
and the status that [appellant is] now.” See ORS 427.265 (“At
the time that a person who is alleged to have an intellectual
disability and to be in need of commitment … is brought
before the court, the court shall advise the person of the
reason for being brought before the court, the nature of the
proceedings and the possible results of the proceedings.”).
Further, counsel indicated that she had “experience
working with [appellant],” was aware of appellant’s particular needs, and affirmatively indicated that the advice that
the trial court gave appellant at the beginning of the hearing
was adequate. Compare State v. M. M.-B., 332 Or App 500,
503,
549 P3d 600 (2024) (court would not exercise discretion to correct any plain error where the trial court “advised
[the appellant] that she had the right to an attorney but did
not specify that she had the right to ‘suitable legal counsel
possessing skills and experience commensurate with the
nature of the allegations and complexity of the case’ ”), with
State v. M. L. S.,
288 Or App 117, 119,
404 P3d 1145 (2017)
(exercising discretion to correct plain error where the trial
court failed to advise appellant in any way of his “right to
subpoena witnesses,” and the record did not demonstrate
that the appellant was informed of that right).
We note that, at the hearing, appellant’s counsel
was prepared to address specific issues related to appellant’s
case, cross-examined the state’s witnesses, and advocated
for appellant’s interests. See State v. Horton, 327 Or App 256,
266,
535 P3d 338 (2023) (declining to exercise discretion to
Nonprecedential Memo Op:
335 Or App 20 (2024) 23
correct plain error where there was only an “extremely low
likelihood” that “the verdict would have been different” but
for the error). And we note that appellant was present for
the advice of rights.
For those reasons, we do not view this as a case
that warrants the exercise of our discretion to review the
asserted plain error.
Affirmed.
