Full Opinion (html_with_citations)

                                      442

                Submitted December 2, affirmed December 29, 2022


                    In the Matter of M. D. D.,
             a Person Alleged to have Mental Illness.
                      STATE OF OREGON,
                           Respondent,
                                v.
                            M. D. D.,
                            Appellant.
                 Josephine County Circuit Court
                      21CC05793; A177365
523 P3d 1152

    Appellant appeals a judgment committing him to the Oregon Health
Authority for a period not to exceed 180 days, based on his being a danger to self
or others due to a mental disorder. Appellant was placed on an emergency hold on
Sunday, October 10, and his commitment hearing was held on Monday, October 18.
In his sole assignment of error, appellant contends that the trial court plainly
erred by failing to dismiss his case because the commitment hearing was not held
within “five judicial days” as required by ORS 426.232(2) and calculated under
ORS 174.120. Appellant contends that the first “judicial day” in the calculation
was Monday, October 11, while the state contends that the first “judicial day”
in the calculation was Tuesday, October 12. The parties’ disagreement turns on
the provision in ORS 174.120(2) regarding not counting “the day on which the
specified period begins to run,” as applied when the hold begins on a Sunday.
Held: The trial court did not plainly err by not dismissing appellant’s case,
because it is reasonably in dispute and not obvious how the “five judicial days”
should be calculated in these circumstances, such that any error is not plain.
    Affirmed.



    Pat Wolke, Judge.
    Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
    AOYAGI, J.
    Affirmed.
Cite as
323 Or App 442
 (2022)                              443

        AOYAGI, J.
         Appellant appeals a judgment committing him to
the Oregon Health Authority for a period not to exceed 180
days, and prohibiting him from purchasing or possessing
firearms, based on his being a danger to self or others due
to a mental disorder. In his sole assignment of error, appel-
lant contends that the commitment hearing was not held
within five judicial days of his being placed on an emergency
hold, as required by ORS 426.232(2), and that the trial court
therefore plainly erred by failing to dismiss the case.
         “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt,
331 Or 335, 341
,
15 P3d 22
 (2000). However, we have discretion to cor-
rect a “plain” error. ORAP 5.45(1). An error is plain when it
is an error of law, the legal point is obvious and not reason-
ably in dispute, and the error is apparent on the record with-
out our having to choose among competing inferences. State
v. Vanornum,
354 Or 614, 629
,
317 P3d 889
 (2013). Whether
an error is plain is an issue of law. State v. Gornick,
340 Or 160, 167
,
130 P3d 780
 (2006).
        The third requirement for plain error is met. The
relevant facts are apparent on the record without having to
choose among competing inferences. On Sunday, October 10,
2021, appellant was detained on a physician’s hold, pursu-
ant to ORS 426.232(1), and was given an advice of rights on
the same date. His commitment hearing was set for Monday,
October 18, 2021, and held on that date.
        The first requirement for plain error is also met.
The alleged error depends on statutory construction, which
is a question of law that we review for errors of law. See
Arrowood Indemnity Co. v. Fasching,
369 Or 214, 251
,
503 P3d 1233
 (2022).
         The parties disagree as to whether the second
requirement for plain error is met, i.e., whether the legal
point is obvious and not reasonably in dispute. Appellant
contends that it is, while the state contends that it is not. We
agree with the state.
        ORS 426.232(1) allows for emergency detention
of a person believed to have a mental illness in certain
444                                              State v. M. D. D.

circumstances. “However, under no circumstances may
the person be held for longer than five judicial days.” ORS
426.332(2). How to calculate “five judicial days” is governed
by ORS 174.120. See ORS 174.120(4) (ORS 174.120 applies
“to time limitations established by statutes of limitation and
other procedural statutes governing civil and criminal pro-
ceedings.”); State v. L. O. W.,
292 Or App 376, 377
,
424 P3d 789
 (2018) (citing to ORS 174.120 with respect to “five judi-
cial days” in ORS 426.232).
        The portion of ORS 174.120 relevant to this appeal
provides:
      “(1) The time within which an act is to be done, as
   provided in the civil and criminal procedure statutes, is
   computed by excluding the first day and including the last
   day, unless the last day falls upon any legal holiday or on
   Saturday, in which case the last day is also excluded.
      “(2) For the purposes of determining whether a person
   has complied with a statutory time limitation governing
   an act to be performed in a circuit court, the Oregon Tax
   Court, the Court of Appeals or the Supreme Court, the time
   prescribed by law for the performance of the act does not
   include the day on which the specified period begins to run.
   The designated period does include the last day unless the
   last day is:
      “(a) A legal holiday or Saturday;
       “(b) A day on which the court is closed for the purpose
   of filing pleadings and other documents;
     “(c) A day on which the court is closed by order of the
   Chief Justice, to the extent provided by the order; or
       “(d) A day on which the court is closed before the end
   of the normal hours during which pleadings and other doc-
   uments may be filed.
       “(3) If the last day of a designated period is excluded
   under the provisions of subsection (2) of this section, the act
   must be performed on the next day that the court is open
   for the purpose of filing pleadings and other documents.”
(Emphases added.)
         Appellant asserts that he was held longer than five
judicial days. By appellant’s calculation, Sunday, October 10
Cite as
323 Or App 442
 (2022)                                              445

is excluded as the “first day,” ORS 174.120(1); the first judi-
cial day was Monday, October 11; the second judicial day was
Tuesday, October 12; the third judicial day was Wednesday,
October 13; the fourth judicial day was Thursday, October
14; and the fifth judicial day was Friday, October 15, which
was the “last day,” and which is counted because it was not
a Saturday or legal holiday, ORS 174.120(1). It follows, in
appellant’s view, that he could only be held until October 15
and that the trial court plainly erred in not dismissing the
case when appellant did not receive a hearing by that date.
          The state responds that defendant is incorrect or
that, at the least, the legal point is reasonably in dispute and
not obvious. By the state’s calculation, Sunday, October 10
is not counted because it was not a “judicial day,” and ORS
426.232(2) allows a person to be held for “five judicial days”;
Monday, October 11 is excluded as “the day on which the
specified period begins to run,” ORS 174.120(2); the first
counted judicial day was Tuesday, October 12; the second
judicial day was Wednesday, October 13; the third judi-
cial day was Thursday, October 14; the fourth judicial day
was Friday, October 15; Saturday, October 16 is excluded
as a Saturday, under both ORS 174.120(1) and (2); Sunday,
October 17 is excluded as a legal holiday, ORS 174.120(1) and
(2)(a), and as a day on which the court was closed for filing,
ORS 174.120(2)(b); and the fifth judicial day was Monday,
October 18, which is the date on which appellant’s commit-
ment hearing was held.
         The parties’ disagreement comes down to whether
“the day on which the specified period beg[an] to run,” ORS
174.120(2), was Sunday, October 10, or Monday, October 11.
The answer to that question determines whether the first of
the “five judicial days” was Monday, October 11, or Tuesday,
October 12. Defendant has not responded to the state’s stat-
utory construction argument, and, based on the arguments
that have been made, it is reasonably in dispute and not
obvious which construction is correct.1 The alleged error
therefore is not “plain.” See Dept. of Human Services v. M. E.,

    1
      We note that, as we understand the parties’ arguments, the disputed
point of construction would only affect the calculation when the hold begins on a
Saturday, Sunday, or legal holiday.
446                                        State v. M. D. D.
297 Or App 233, 244
,
441 P3d 713
 (2019) (concluding that a
legal point relating to statutory construction was not “obvi-
ous” where it presented a “question of first impression with-
out an obvious answer” and that any error therefore was not
plain).
        Affirmed.