No. 840 September 24, 2025 619
This is a nonprecedential memorandum opinion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 M. S.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. S.,
Appellant.
Multnomah County Circuit Court
23CC05396; A182263
Jane W. Fox, 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.
Lani Augustine, Certified Law Student, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Leigh A. Salmon, Assistant Attorney General.
Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
PAGÁN, J.
Affirmed.
620 State v. M. S.
PAGÁN, J.
Appellant challenges a judgment committing her to
the custody of the Oregon Health Authority for a period not
to exceed 180 days pursuant to ORS 426.130(1)(a)(C), raising two assignments of error. First, appellant argues that
the trial court plainly erred by failing to appoint counsel as
soon as reasonably possible under ORS 426.100(3)(e), and
that, in any event, counsel was ineffective and the court
should have sua sponte substituted counsel; and, second,
appellant argues that the trial court plainly erred when it
admitted a report from an investigator when the investigator
was not present at the hearing, as required by ORS 426.095
(4)(d)(C). As we will explain, because we have previously held
that it is not obvious or beyond reasonable dispute that ORS
426.100(3)(e) requires the court to appoint counsel “as soon
as reasonably possible” after an emergency hold starts, and
because we do not find any error regarding the admission
of the investigative report to be plain or obvious, we affirm.
While appellant’s history and factual circumstances
are complex and difficult, we discuss only those necessary for
our appeal. Appellant has a history of hospitalizations due
to her bipolar disorder. The incident that led to the current
hearing involved a security guard at a store in Portland on
August 28, 2023. Appellant had been yelling in front of the
store and when confronted by security had described herself
as an ambassador with diplomatic immunity. After being
asked to leave, appellant refused and brandished a large
knife. The security guard eventually used pepper spray on
appellant to stop her advances with the knife. Appellant
was then subdued by police, who arrived soon thereafter,
and was taken to Unity Hospital in Portland.
The court issued the citation for the commitment
hearing on August 31, 2023. The order appointing counsel
was signed on September 1, 2023, nunc pro tunc to August 31,
2023. On September 1, 2023, the court held the commitment
hearing. Counsel appeared for appellant. The court read
appellant her statutory rights, including that she had the
right to counsel and that the court had appointed counsel
to represent her “today.” The court held the hearing with
counsel participating on behalf of appellant. Counsel did
Nonprecedential Memo Op: 343 Or App 619 (2025) 621
not object to the appointment or request any further time
for preparation. During the hearing, the court admitted,
without objection except for portions that were identified
as hearsay, an examiner’s report by an investigator named
Kerwin, but the record does not indicate whether the investigator was present at the hearing. After receiving evidence,
the trial court found that appellant suffered a mental illness and ordered her to the custody of the Oregon Health
Authority. Appellant timely appealed.
As we noted earlier, both of appellant’s assignments
of error are unpreserved, and she asks us to review them
under our plain error framework. See State v. Gornick, 340
Or 160, 167,
130 P3d 780 (2006) (explaining the plain error
analysis). An error is plain if it is (1) an error of law; that is
(2) obvious, i.e., not reasonably in dispute; and (3) appears
on the face of the record without the court needing to choose
between competing inferences to find it. State v. Dillalo,
367
Or 340, 344,
478 P3d 509 (2020). We review whether a trial
court properly applied the civil commitment statutes for
legal error. See State v. K. R. B.,
309 Or App 455, 457-58,
482 P3d 134 (2021).
Looking at the first assignment of error, we note
that appellant’s argument, to the extent it claims several
errors, does not comply with ORAP 5.45, as it purports to
identify several different legal rulings. See Wood v. Taylor,
307 Or App 688, 695,
479 P3d 560 (2020). We understand
appellant’s arguments to focus on two things: whether the
trial court appointed counsel as reasonably as possible; and
that because appellant argues that counsel was ineffective,
the trial court should have sua sponte substituted counsel
based upon her performance and other issues. We reject
both arguments.
ORS 426.100(3)(e) states that, if a person is detained
prior to the hearing, the right “to contact an attorney or …
to have an attorney appointed may be exercised as soon as
reasonably possible.” In State v. C. T., 333 Or App 718, 720,
553 P3d 1070 (2024), we held that, particularly in an unpreserved posture, we could not conclude that it was plain or
obvious that the legislature intended to require a court to
appoint counsel as soon as reasonably possible under ORS
622 State v. M. S.
426.100(3)(e), or whether it meant that the detained individual in a civil commitment proceeding had the right to
seek counsel.
333 Or App at 720-21. Further, we noted that,
without an objection, no record had been made about when
it would have been “reasonably possible” to appoint counsel
given the circumstances.
Id. at 721. The same procedural
and factual circumstances control our decision here. The
citation in this case was issued on August 31, 2023, and the
record is unclear as to exactly when counsel was appointed.
Counsel appeared at the hearing and made no record about
when she was appointed or whether it would have been reasonable to appoint her earlier. Without more, we cannot find
any error, let alone a plain error.
Turning then to the argument about counsel’s performance, we understand appellant’s argument to be that
the circumstances demonstrated that counsel was ineffective, and, thus, the court did not comply with its obligation to
appoint competent counsel under ORS 426.100. That argument, however, requires us to consider what the court should
have done in that instance, and we agree with the state that
State v. M. T., 334 Or App 453,
556 P3d 1059 (2024), should
guide our decision here. In M. T., we rejected the argument
that a court had a duty to evaluate counsel’s performance
during the hearing, and, if not satisfied, sua sponte substitute counsel, absent some evidence that counsel had created
circumstances that were either adversarial to their client or
otherwise made continuing representation untenable.
Id. at
461-62. Appellant’s argument here requires us to engage in
the same analysis. Appellant has not identified any behavior or other circumstances in the record that would cause us
to conclude that the threshold identified in M. T. was met,
and our independent review of the record does not reveal
any such incidents.
Regarding appellant’s second assignment of error,
she argues that Kerwin, the investigator who drafted the
examiner’s report, was not present at the hearing, and,
thus, the admission of Kerwin’s report into evidence was a
violation of ORS 426.095(4)(d)(C). ORS 426.074 requires an
investigation report to be prepared for the trial court, and
ORS 426.095(4)(d) requires that the report be introduced
Nonprecedential Memo Op: 343 Or App 619 (2025) 623
into evidence, subject to certain limitations. ORS 426.095
(4)(d)(C) states:
“Neither the investigation report nor any part thereof
shall be introduced into evidence under this paragraph
unless the investigator is present during the proceeding to
be cross-examined or unless the presence of the investigator is waived by the person alleged to have a mental illness
or counsel for the person.”
As noted above, appellant asserts that Kerwin
was not present, and that appellant did not waive Kerwin’s
presence under ORS 426.095(4)(d)(C). We disagree that
the record conclusively demonstrates that Kerwin was not
present and available for cross examination. The transcript
includes an introductory portion where people who would be
testifying and lawyers stated their names for the record, but
there is no discussion about Kerwin or whether Kerwin was
present at the hearing. Further, the state discussed not calling particular witnesses to shorten the hearing, and counsel
did not object or mention Kerwin. Based on counsel’s limited
objection during the admission of the investigative report
(hearsay for portions of the document), the record does not
demonstrate that Kerwin was absent. The alleged error
therefore does not appear on the face of the record, and resolution of it would require us to choose between competing
inferences. In those circumstances, any error is not plain.
See C. T., 333 Or App at 722 (“For an error to be ‘plain,’
it must be apparent on the face of the record. We cannot
find plain error based on speculation in the face of a silent
record.” (Internal citation omitted.)).
Affirmed.
