IN RE: J. R. (2020)

Appellant appeals the trial court's order that continued appellant's civil commitment to the Oregon Health Authority (OHA) for a period of time not to exceed 180 days. ORS 426.301 (providing that a person committed must be released at the end of 180 days unless OHA certifies to the court that “the person is still a person with mental illness and is in need of further treatment” and setting out a procedure that allows the person to protest the continued commitment). Appellant argues that it was plain error for the court to fail to advise him that he was entitled to have the court appoint a physician to examine him at the court's expense. ORS 426.303 (a person who protests continued commitment must be informed of rights set out in ORS 426.301); ORS 426.301(3)(g) (a person is entitled to an examination by a physician (or qualified professional) who is not a member of the facility confining the person); ORS 426.301(3)(h) (trial court will appoint an outside physician (or qualified professional) if the person protesting continued commitment cannot afford one).

The state concedes that the trial court error plainly erred but does not concede that we should exercise our discretion to correct the error. In the state's view, the error was harmless. That is because appellant received a notice that stated that the OHA intended to continue his commitment and that appellant was entitled, at no cost to appellant, to an examination by a physician from outside the facility confining him. The server who delivered the notice read to appellant those statutory rights.

We agree with the state. We decided a virtually identical issue in State v. T. W., 300 Or. App. 646, 647, 452 P.3d 1081 (2019). There, relying on State v. Ritzman, 192 Or. App. 296, 300-01, 84 P.3d 1129 (2004), we held that the trial court's error in failing to advise the appellant of his right to have a physician appointed at court expense was harmless because the appellant had been adequately informed of his rights when served with the notice, and we therefore did not exercise our discretion to correct the error. T. W., 300 Or. App. at 647, 452 P.3d 1081 (citing State v. Kerne, 289 Or. App. 345, 349-50, 410 P.3d 369 (2017), rev. den., 363 Or. 119, 421 P.3d 353 (2018) (“One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when that error is harmless[.]”)). We likewise in this case do not exercise our discretion to correct the plain error, and we affirm the continued commitment order.

Affirmed.

PER CURIAM