State v. Burge

1 P.3d 490, 167 Or. App. 312, 2000 Ore. App. LEXIS 787

• Court: Court of Appeals of Oregon
• Decided: May 17, 2000
• Docket: 98-05-1567; CA A102441
• Status: Published

Opinions

HASELTON, P. J.

Appellant seeks reversal of an order adjudicating him to be chronically mentally ill, ORS 426.005(l)(d)(C), as well as a danger to himself or others, ORS 426.005(l)(d)(A), and committing him to the Oregon Mental Health and Developmental Disability Services Division. The state concedes that the trial court erred in failing to advise appellant of his rights under ORS 426.100(1),¹ notwithstanding his counsel’s ostensible “waiver” of advice of rights. As explained below, we accept the state’s concession of error and reverse.

At the commitment hearing, the following colloquy occurred:

“THE COURT: Mr. Birnbaum I have an advice of rights form. Do you want me to read that to him or would you waive?

“MR. BIRNBAUM [Appellant’s Counsel]: Your Honor I’ll waive the reading of the advice of rights but Mr. Burge has asked me to point out to the Court that he’s been in custody more than five days and that he was suppose to have been let out, this hearing was supposed to [be] held with[in] five days and he’s indicated that he would like to put on the record that he — he needs to, that the case should be dismissed.

“THE COURT: Alright, it’s so noted.”

The court, after receiving evidence, subsequently entered the order of commitment.

On appeal, appellant contends that the trial court erred in determining him to be chronically mentally ill, because he was not interviewed by a mental health investigator before the commitment hearing. The state disputes that issue but concedes that “this case should be reversed and remanded based upon the trial court’s failure to fully advise appellant of his rights under ORS 426.100.” We accept the state’s concession and, consequently, do not reach and address appellant’s arguments. Cf. State v. Jones, 129 Or App 413, 416, 879 P2d 881 (1994); id. at 417 (Riggs, J., concurring); id. at 419 (Haselton, J., concurring) (addressing effect of state’s concession of error on court’s exercise of discretion to reach and correct “plain error” under Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991)).

The trial court’s failure to advise appellant of his rights under ORS 426.100(1) was “an error of law apparent on the face of the record.” ORAP 5.45(2). See State v. May, 131 Or App 570, 888 P2d 14 (1994); State v. Allison, 129 Or App 47, 877 P2d 660 (1994). In May, we considered whether a lawyer’s failure to object to the court’s failure to advise the allegedly mentally ill person of her hearing rights waived any error in that regard. We concluded that it did not:

“[A] lawyer’s failure to object, standing alone, does not constitute a waiver of the right to be advised of the rights pertaining to the conduct of a civil mental commitment hearing. Those are mandatory advisements specifically designed to ensure that the alleged mentally ill person receives the benefits of a full and fair hearing. The court must either advise the alleged 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. Here, the court neither advised appellant nor conducted any such examination.” May, 131 Or App at 571 (emphasis added).

The same principle controls here. Although the alleged “waiver” in May was silent, and the “waiver” here was oral, May’s holding is unconditional: When faced with an ostensible waiver of the explanation of rights under ORS 426.100(1), “[t]he court must **■* conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made.” Id. at 571 (emphasis added).² Here, the trial court failed to do so.

We note, moreover, that, given May, counsel’s “waiver” differed materially from the appellant’s stipulation to commitment in State v. Waters, 165 Or App 645, 997 P2d 279 (2000). In Waters, the stipulation pertained to the sufficiency of evidence to support commitment and did not encompass a waiver of the recitation of the appellant’s hearing rights. We declined to consider the appellant’s unpreserved challenges to that stipulation, observing, inter alia:

“Those alleged errors are exactly the type of errors that never would have occurred had appellant not affirmatively invited them. In other words, no stipulation could have occurred had appellant or his counsel questioned the propriety of such a stipulation in the trial court.” 165 Or App at 651.

Here, in contrast, counsel’s expression of “waiver” merely triggered the court’s ensuing obligation under May to conduct the prescribed “examination of the record” into whether waiver was, in fact, knowing and voluntary. That is, when faced with counsel’s ostensible waiver of the advice of rights, the court had an independent judicial obligation to inquire of appellant as to the voluntariness of that purported “waiver.” Without that inquiry, the “waiver” was ineffective, and the court was required to advise appellant of his rights.

The trial court failed either to “conduct [the] examination on the record” prescribed in May or to inform appellant of his rights. That was reversible error. See May, 131 Or App at 571.³

Reversed.

1 ORS 426.100( X) 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.”

2 May does not describe the content of the required inquiry. Ironically, a reasoned inquiry into whether the person to be committed has knowingly and voluntarily waived the reading of rights may well require a recitation of the rights themselves.

3 The dissent takes issue with our reasoning, asserting that (1) our analysis cannot be squared with State v. Buffum, 166 Or App 552, 999 P2d 541 (2000); and (2) in the absence of an explicit legislative directive, a requirement of knowing and voluntary waiver should not be judicially implied. Both of those premises fail.

First, Buffum was qualitatively different. There, the question was not whether the court had given any advice of rights, but whether the court conveyed sufficient information to make that advice of rights meaningful. As we explained in Buffum-.

“Appellant and the dissent also seek support in State v. Allison, 129 Or App 47, 877 P2d 660 (1994). We held in that case that, notwithstanding the fact that the allegedly mentally ill person was represented by counsel and had ‘stipulated to the facts and to his commitment,’ id. at 50, the trial court committed reversible error by failing to provide advice pursuant to ORS 426.100(1). Allison is simply inapposite. It says and suggests nothing about the substance of the information that a court must provide when it does advise an allegedly mentally ill person pursuant to ORS 426.100(1).” 166 Or App at 557 (emphasis in original).

Thus, the issue in Buffum differed materially from that in Allison and May — and this case — where the court gave no advice of rights.

Second, the dissent’s real dispute is with May. Even if, as the dissent implicitly suggests, this is an area inviting wholesale legislative overhaul, the fact remains that, in May, we did impose a requirement that the court engage in “on the record” inquiries into whether an ostensible waiver of the advice of rights is, in fact, knowing and voluntary. Unless we are going to overrule May, that is the law.