State v. Cach

19 P.3d 992, 172 Or. App. 745, 2001 Ore. App. LEXIS 260
CourtCourt of Appeals of Oregon
DecidedFebruary 28, 2001
Docket9903-61470; CA A105887
StatusPublished
Cited by9 cases

This text of 19 P.3d 992 (State v. Cach) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cach, 19 P.3d 992, 172 Or. App. 745, 2001 Ore. App. LEXIS 260 (Or. Ct. App. 2001).

Opinions

[747]*747KISTLER, J.

The trial court committed appellant to the custody of the Oregon Mental Health and Developmental Disability Services Division because it found that, as a result of a mental illness, he was a danger to others and unable to provide for his basic needs. Appellant argues that the court’s judgment should be reversed because the court failed to advise him of his rights under ORS 426.100. We affirm.

On March 11,1999, the trial court appointed counsel to represent appellant.1 The next day, appellant received a citation that, among other things, set out written advice about the nature of the hearing and some of appellant’s rights at the hearing. The citation stated: “You have a right to representation by legal counsel at the hearing. If you are unable to afford legal counsel, you have the right to have legal counsel appointed for you.” The hearing began approximately an hour and a half after appellant received the citation.

At the beginning of the hearing, the trial judge introduced himself to appellant and told him:

“A report has been made to the Court that you may have a mental disorder and because of that be dangerous to yourself and dangerous to others, or unable to take care of your basic needs. And I’m going to clarify which of those might apply in just a minute. I’m going to hold a hearing this morning to decide what to do about that report.
“I’ve appointed Mr. Varnes, who’s sitting on your left, as your lawyer. You have the right to be represented by a lawyer. That’s what he’ll be doing.
‘You can subpoena witnesses[ — y]ou have that right [ — ]to court, meaning require witnesses to come here and testify. You can also, through your lawyer, cross-examine witnesses, meaning ask questions of them.
“The gentleman sitting across the table from me is with the District Attorney’s office. He is here to represent the [748]*748State’s interest. The State’s required to prove the case against you.”

The court went on to explain about the process of questioning witnesses, described the role that the examiners would play, and explained the possible consequences of the hearing to appellant. After hearing the evidence, the court ruled that appellant should be committed to the custody of the mental health division for no more than 180 days.

Appellant argues that the court’s judgment should be reversed because it did not adequately advise him of one of the rights set out in ORS 426.100. Subsection (1) of that statute 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.”

ORS 426.100(1). Appellant does not dispute that the trial court adequately advised him of the first four rights. Rather, he argues that the court erred in advising him of his “rights regarding representation by or appointment of counsel.” Specifically, he argues that “[tjhe trial court did not tell [him] of his right to private counsel or his right to represent himself.”

Appellant’s argument presents two statutory construction issues. First, he argues that the court should have told him that he had a right to retain private counsel. The trial court, however, had appointed counsel for appellant before it advised him of his rights — an act that, by statute, reflects the court’s determination that appellant “d[id] not have funds with which to retain legal counsel[.]” See ORS 426.100(3)(b).2 Appellant’s argument accordingly reduces to [749]*749the proposition that ORS 426.100(l)(e) required the trial court to advise him of the right to retain private counsel even though the trial court had already determined that he lacked the resources to do so.

Neither the text nor the context of ORS 426.100(l)(e) suggests that the statute imposes that obligation on trial courts. ORS 426.100(l)(e) directs trial courts to tell an allegedly mentally ill person about the right to be represented by retained counsel or the right to be represented by appointed counsel. The statute is phrased in the disjunctive, and a related statutory provision makes clear that the two rights are mutually exclusive. ORS 426.100(3)(b) provides that a person has a statutory right to appointed counsel in mental commitment hearings if he or she “does not have funds with which to retain legal counsel.” Conversely, a person who has the resources to retain private counsel has no right to appointed counsel. See ORS 426.100(3)(b); see also ORS 426.100(3)(e) (when a person is being involuntarily detained, he or she has a right either to contact an attorney or have an attorney appointed as soon as reasonably possible). If a court has already determined that an allegedly mentally ill person does (or does not) have the funds to retain private counsel, the word “or” in ORS 426.100(l)(e) implies that a court may limit its advice to whichever of the two rights applies.

We recently explained that ORS 426.100(1) is intended to “provide an allegedly mentally ill layperson with sufficient productively usable information to enable the person to take the actions necessary to protect his or her interests.” State v. Buffum, 166 Or App 552, 556, 999 P2d 541, rev allowed 331 Or 361 (2000).3 ORS 426.100(1)(e) similarly leaves trial courts sufficient latitude to tailor their advice to [750]*750the needs of the case. See id. In this instance, the investigator’s report disclosed that appellant had virtually no resources, and the trial court had appointed counsel for him before the hearing.

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State v. Cach
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Cite This Page — Counsel Stack

Bluebook (online)
19 P.3d 992, 172 Or. App. 745, 2001 Ore. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cach-orctapp-2001.