31 P.3d 1129 | Or. Ct. App. | 2001
In the Matter of Charlene Bartel-Dawson, Alleged to be a Mentally III Person.
STATE of Oregon, Respondent,
v.
Charlene BARTEL-DAWSON, Appellant.
Court of Appeals of Oregon.
Susan D. Isaacs, Beaverton, argued the cause and filed the brief for appellant.
Richard D. Wasserman, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
PER CURIAM.
In this appeal of appellant's commitment to the custody of the Oregon Mental Health and Developmental Disability Services Division, the only issue is whether the trial court's failure to advise appellant at the hearing of her right to subpoena witnesses requires reversal. The state concedes that ORS 426.100(1)(d) requires such advice to be given at the hearing, a concession we accept.[1] The state argues, however, that the error is harmless, relying on State v. Cach, 172 Or.App. 745, 750 n. 4, 19 P.3d 992, rev. den. 332 Or. 316, 28 P.3d 1176 (2001) (Kistler, J., majority) and 172 Or.App. at 754, 19 P.3d 992 (Edmonds, P. J., concurring). We agree that, under Cach, a harmless error analysis applies.
Here, before the hearing, the court served appellant with a citation for the commitment hearing that stated, in relevant part, "You have a right * * * to subpoena witnesses to testify in your behalf at the hearing." That advice was identical to the advice required at the hearing under the statute. Additionally, appellant was represented at the hearing by experienced counsel, who in fact presented a witness on appellant's behalf. We agree with the state that, under those circumstances, the error was harmless.
Affirmed.
NOTES
[1] ORS 426.100(1) provides that, "[a]t the time the allegedly mentally ill person is brought before the court, the court shall advise the person of," among other rights, "[t]he right to subpoena witnesses."
