State v. D. K.

No. 900            December 11, 2024                      793

   This is a nonprecedential memorandum opinion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. K.,
    a Person Alleged to have Intellectual Disabilities.
                 STATE OF OREGON,
                      Respondent,
                            v.
                          D. K.,
                        Appellant.
              Marion County Circuit Court
                  23CC05337; A182767

  Michael Y. Wu, Judge pro tempore.
  Argued and submitted October 18, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Peenesh Shah, 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, Powers, Judge, and Pagán,
Judge.
  POWERS, J.
  Affirmed.
794                                                State v. D. K.

         POWERS, J.
         Appellant challenges a judgment of involuntary
civil commitment to the custody of the Department of
Human Services for a period not to exceed one year based on
the trial court’s determination that appellant has an intellectual disability and because of that intellectual disability
was a danger to self and others and unable to provide for
appellant’s basic needs. See ORS 427.290(3) (providing for
civil commitment of a person with intellectual disabilities);
see also State v. C. P., 

, 

(2021) (outlining intellectual disability civil commitment
framework provided by ORS 427.215 through 427.306). On
appeal, appellant advances a single assignment of error that
raises numerous unpreserved procedural challenges that
primarily rely on State v. T. C., 

, 

(2023), rev den, 

 (2024), but does not otherwise
contest the underlying merits of the civil commitment. For
its part, the state relies primarily on State v. S. R.-N., 

, 

 (2022), and remonstrates that the
alleged procedural deficiencies were either functionally remedied during the pre-hearing process or insufficient to qualify as plain error. Assuming without deciding that the trial
court plainly erred in the ways that appellant advances on
appeal, we decline to exercise our discretion under the circumstances of this case to correct any plain error. See State
v. D. K. P., 

, 

 (2024) (declining to exercise discretion to reach any plain error even
though the citation was deficient). Accordingly, we affirm.
         Because the parties are familiar with the undisputed procedural facts in this case, we do not provide a
recitation for this nonprecedential memorandum opinion.
Plain-error review involves a two-step inquiry in which
we first determine whether the error is plain, and second,
whether to exercise our discretion to consider and correct
the error. ORAP 5.45; Ailes v. Portland Meadows, Inc., 

, 

 (1991). First, to constitute plain
error, the error must (1) be an error of law, (2) be obvious, i.e.,
not reasonably in dispute, and (3) be apparent on the record
without requiring the court to choose among competing
inferences. State v. Vanornum, 

, 

Nonprecedential Memo Op: 

 (2024)            795

(2013) (citing cases). Second, if all three parts of the plain-error test are satisfied, we must determine whether to exercise our discretion to review the error. Id. at 630 (explaining
that “discretion entails making a prudential call that takes
into account an array of considerations, such as the competing interests of the parties, the nature of the case, the
gravity of the error, and the ends of justice in the particular
case”). A court’s recognition of an unpreserved or unraised
error should be made with “utmost caution” because reaching such an error is contrary to the strong policies requiring
preservation. Ailes, 

. As the Supreme Court
recently explained, the preservation requirement promotes
fairness and judicial economy, ensures that parties are not
taken by surprise or denied opportunities to meet an argument, and helps secure the trial court’s ability to consider
and rule on a contention thereby avoiding an error altogether or fixing one already made. See State v. Wiltse, 

, ___ P3d ___ (2024).
         Here, even assuming that appellant’s argument is
correct that the trial court plainly erred, we decline to exercise our discretion to correct any error. Like the situation
in D. K. P., which advanced similar contentions challenging
the citation in an intellectual-disability commitment, counsel in this case was appointed early to represent appellant
and there is nothing in the record to suggest that appellant or counsel were confused or misled by any discrepancies in the citation. The gravity of the error in the context
of this case weighs against exercising our discretion, especially considering that the parties and the court could have
addressed any issues raised by the challenged citation (and
what effect, if any, the second—unchallenged—citation) has
on this case. In short, similar to the situations in D. K. P.
and S. R.-N., we decline to correct any error because we conclude that appellant’s hearing did not result “in a commitment hearing that was less than full and fair.” S. R.-N., 

.
        Affirmed.