IN RE: M. L. S.

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Court of Appeals of Oregon.

IN RE: M. L. S., a Person Alleged to have an Intellectual Disability. STATE OF OREGON, Respondent, v. M. L. S., Appellant.

A162769

    Decided: October 04, 2017

Before Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge. Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.

EGAN, P. J.

Appellant, alleged to be a person with an intellectual disability, appeals an order committing him to the Department of Human Services for a period not to exceed one year. See ORS 427.290. In his first assignment of error,1 appellant contends that the trial court plainly erred by failing to advise him of his right to subpoena witnesses, as required by ORS 427.265(1).2

As we have explained in the context of mental commitment proceedings, a civil commitment has serious consequences, and the statutes are intended to ensure that, before a person suffers those consequences, “he or she receives the benefit of a full and fair hearing.” State v. M. L. R., 256 Or App 566, 570, 303 P3d 954 (2013). If a court does not provide a person with all of the information required by the statute, then the person does not receive that benefit. Id. Thus, we have held that the failure to provide all the information required by the statute “constitutes an egregious error that justifies plain error review.” Id. at 571. The reasoning we have applied to a trial court's failure to advise a person as required in involuntary mental commitment cases also applies in the context of involuntary commitments of per-sons with intellectual disabilities. Here, the state concedes that the court's failure to advise appellant of his right to subpoena witnesses was plain error.3 We agree.

Nonetheless, the state asserts that we should decline to exercise our discretion to consider and correct the error; in the state's view, because trial counsel informed the court that he had not subpoenaed witnesses, the error was harmless.4 We disagree. Our focus in determining whether the trial court's failure to give appellant all of the information required by ORS 427.265 is harmless is whether he received all of that required information from another source. See State v. S. J. F., 247 Or App 321, 326-28, 269 P3d 83 (2011). Here, counsel's statement to the court that counsel had not subpoenaed witnesses does not demonstrate that appellant was provided with all of the information required under ORS 427.265, including that he had a “right to subpoena witnesses.” Accordingly, we conclude that the state's conten-tion that the trial court's violation of ORS 427.265(1) was harmless is unavailing.

Furthermore, in view of the nature of the proceeding, the relative interests of the parties in the proceeding, the gravity of the violation, and the ends of justice, we conclude that it is appropriate to exercise our discretion to correct the trial court's error in this case. See M. L. R., 256 Or App at 570 (explaining that plain error review of viola-tions of ORS 426.100(1) in mental commitment proceedings is justified by “the nature of civil commitment proceedings, the relative interests of the parties in those proceedings, the gravity of the violation, and the ends of justice” (internal quotation marks omitted)); see also State v. T. L. H., 280 Or App 392, 393, 381 P3d 1089 (2016) (exercising discretion to correct a trial court's failure to advise a person alleged to have a mental illness of her rights as required by statute).

Reversed.

FOOTNOTES

1.   Appellant also raises a second assignment of error, which we do not address in light of our resolution of his first assignment.

2.   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.”

3.   At the beginning of the hearing, the court advised appellant as follows:“So your attorney can cross-examine witnesses, review all the reports that he said he just received. And you could also present evidence if you have evidence. You'll be *** allowed an opportunity to make a statement to me. You can tell me anything that you think would help me in making an informed decision here today. And there's also an opportunity to postpone this matter for up to seventy-two hours if I find good cause and, counsel, is there any reason to postpone the hearing?”

4.   At the hearing, after the state's witnesses testified, the court asked appellant's counsel whether he had “exercise[d his] right to subpoena witnesses here.” Counsel responded: “I have no witnesses other than my client, Your Honor.”

EGAN, P. J.

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