State v. K. R. B.

“One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when that error is harmless.” State v. Kerne, 289 Or App 345, 349-50, 410 P3d 369 (2017), rev den, 363 Or 119 (2018).

Appellant appealed a judgment where he was committed to the Mental Health Division under ORS 426.130(1)(a)(C) because it was determined Appellant could not care for his own basic needs due to his mental illness. Appellant argued the court erred by not complying with ORS 426.090 which required that Appellant should have been served with a citation before the hearing. Appellant did not preserve such argument, however, Appellant urged the Court to correct the error as plain error under ORAP 5.45(1). The State countered that the error was harmless. “One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when that error is harmless.” State v. Kerne, 289 Or App 345, 349-50, 410 P3d 369 (2017), rev den, 363 Or 119 (2018). The Court held that the error was harmless because Appellant was served with the citation moments after the hearing commenced. Because no evidence had been taken, all information required by ORS 426.090 was present on the citation, Appellant was provided with full advice of rights, and Appellant’s attorney was present throughout the hearing, Appellant received a full and fair hearing. Affirmed.