In this appeal of appellant’s recommitment 1 to the custody of the Oregon Mental Health Division, appellant raises two issues. First, she argues that the trial court failed to advise her of her rights pursuant to ORS 426.100(1). Second, she argues that the evidence is insufficient to establish, by clear and convincing evidence, that she is mentally ill, dangerous to others, and unlikely to voluntarily comply with treatment. We write only to address the first issue, and we affirm.
ORS 426.100(1) provides:
“At the time the allegedly mentally ill person is brought before the court, the court shall advise the person of the following:
“(a) The reason for being brought before the court;
“(b) The nature of the proceedings;
“(c) The possible results of the proceedings;
“(d) The right to subpoena witnesses; and
“(e) The person’s rights regarding representation by or appointment of counsel.”
To comply with the statute, a trial court in a civil commitment proceeding must either advise the allegedly mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made.
State v. May,
In this case, on the date that the hearing was originally scheduled, appellant appeared with counsel. At appellant’s request, the trial court granted a set over of one week. When the hearing reconvened a week later, the trial judge stated that he recalled having advised appellant of the applicable rights and procedures and asked appellant if she remembered being in the courtroom the week before. Although appellant said that she did remember being there, her response was otherwise rambling and largely incoherent. 2 As it turns out, the trial judge’s recollection of what occurred the week before was mistaken. The transcript of the proceeding reveals that the trial court did not go through the advice of rights and procedures as required by the statute. Nor, when the hearing reconvened, did the trial court establish that appellant was willing to validly waive that advice.
Thus, the trial court erred. Moreover, the error is one that we will consider on appeal, despite appellant’s failure to object or otherwise preserve the issue at the hearing, because it is apparent on the record and the legal point is not reasonably in dispute. The only remaining question, then, is whether the error was harmless. The state argues that it was, pointing to the fact that the record reveals: (1) appellant’s awareness of her rights to subpoena witnesses and to be represented by counsel; (2) her awareness of the nature of the
proceeding
— i.e., that it was a recommitment hearing; and (3) appellant’s representation by counsel throughout the
proceedings. Relying on
State v. Buffum,
We agree with the state, but not for the reasons that the state outlines. If we were left only with the transcript of the proceedings, we would have to conclude that, although appellant was aware of her right to counsel, nothing alerted her to her right to
We conclude, however, that the error is harmless because the record includes a “Notice of Intent to Continue Commitment,” a written document that appellant signed when the recommitment proceeding was initiated. The advice contained in that document not only duplicated the advice that ORS 426.100(1) requires but exceeded it. 3 The person who served the notice on appellant signed and dated the notice, attesting that the notice was not only delivered to appellant but was also read to her. Appellant also signed and dated the notice.
Based on the record as a whole, including the written notice and the fact that appellant was represented at the hearing by counsel, we conclude that the trial court’s error in failing to comply with ORS 426.100(1) was harmless.
See State v. Bartel-Dawson,
Affirmed.
Notes
Appellant asserts that the nature of the proceeding at issue is unclear and that it could have been either a recommitment hearing pursuant to ORS 426.307 or a hearing to determine whether to revoke appellant’s trial visit pursuant to ORS 426.275. Although an “Order of Revocation of Trial Visit” is part of the record in this case, it bears a different case number. The other documents in the file clarify that this particular proceeding was a recommitment hearing.
Appellant first responded by stating .that she was denied her legal rights and “that has happened again.” Then, when the trial court said, “You were here last week and you remember that!.]” Appellant responded, “I remember all of that.” She continued by saying, “That Japanese,” at which point the trial court interrupted and asked her if she was talking about counsel. Appellant continued, “Her with parental rights and FCS and what she thinks she’s going to do today. She killed too many people in Woodland Park and she thinks she’s neat. She doesn’t care anymore.”
For example, the notice advised appellant that her commitment could be continued for up to 180 days; that she was entitled to be examined by a physician or other qualified person other than a member of the staff at the facility where she was confined; and that if she was without funds, the court would appoint such a physician or other qualified mental health examiner at no cost to her.