State v. Y. B. (In re Y. B.)
439 P.3d 1036
Or. Ct. App.2019Background
- Appellant appealed a civil commitment judgment and firearms-prohibition order under ORS 426.130, claiming the trial court failed to advise him of rights required by ORS 426.100(1).
- Appellant did not preserve the claim below and asks the court to review under the plain-error standard.
- The record on appeal shows the court began the hearing in the courtroom, then went off the record to the appellant’s room; subsequent on-the-record proceedings refer to what appellant had told the court but do not transcribe that exchange.
- The state argued the record contains a gap that might include compliance with ORS 426.100(1), so plain error is not established on the face of the record.
- The appellate court held appellant bore the burden to produce a record of off-the-record proceedings (transcript, agreed narrative, or other statutory mechanism) and did not do so; therefore the court could not review the claimed error and affirmed.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court failed to advise appellant of rights required by ORS 426.100(1) | The court never advised appellant on the record and did not examine him on the record to establish a valid waiver | The record shows an off-the-record gap during which the court may have complied; plain error must appear irrefutably on the record | Affirmed: appellant failed to supply a record of the off-the-record interaction; plain-error review not satisfied |
| Whether appellate court may remedy unrecorded off-the-record proceedings | Appellant urges plain-error review despite missing transcript | State says plain error requires irrefutable record evidence; gaps preclude such a finding | Held: cannot find plain error when record affirmatively shows missing off-the-record proceedings and appellant provided no substitute record |
| Whether trial court had procedural duty to create a complete record of commitment proceedings | Appellant implies counsel or court should have ensured on-record advisement | State: no procedural claim was preserved; legislature removed judge’s prior duty to create a "full account" in ORS 426.160 | Held: appellant did not assert or prove a procedural statutory duty that would shift burden from appellant to create the record |
| Whether statutory remedies (e.g., agreed narrative) could cure missing record | Appellant did not supply any alternative record under ORS 19.380 or other procedures | State notes appellant made no such effort | Held: appellate review precluded because appellant did not use available mechanisms to memorialize off-the-record proceedings |
Key Cases Cited
- State v. S. J. F., 247 Or. App. 321 (2011) (trial court must advise alleged mentally ill person on the record or examine waiver on the record)
- State v. B. K., 295 Or. App. 697 (2019) (off-the-record advisals may prevent plain-error reversal when parties later place compliance on the record)
- State v. M. M., 288 Or. App. 111 (2017) (plain error requires the record to irrefutably show the error)
- Ibarra v. Conn, 261 Or. App. 598 (2014) (failure to memorialize off-the-record discussion can preclude appellate review)
- State v. Obelo, 179 Or. App. 684 (2002) (use ORS 19.420(3) procedures when reporter’s notes are missing and show substitute efforts and prima facie error)
- State v. Anderson, 21 Or. App. 263 (1975) (prior precedent reversing where judge failed to record a full account of commitment proceedings)