Antoine v. Taylor, 465 P.3d 238

Petitioner (Antoine) was indicted on nine sex-related felony counts pleaded in statutory language only; discovery showed many more alleged incidents than the indictment specified.
Antoine demurred, arguing the indictment plus discovery failed to give adequate notice; the trial court overruled the demurrer and indicated the state would make its election "during the course of trial."
The state presented multiple incidents at trial and, after its case-in-chief, elected the specific incidents it relied on; the jury convicted on all counts.
On direct appeal (Antoine I) the Court of Appeals held a defendant should seek a pretrial election to obtain timely notice, but that decision issued after Antoine’s trial.
In post-conviction proceedings, the court granted relief, finding trial counsel ineffective for not moving for a pretrial election; the superintendent appealed.
The Court of Appeals reversed the post-conviction grant, holding that counsel’s performance must be judged by the law and circumstances at the time of trial (not Antoine I), and that counsel’s steps were reasonable under then-controlling precedent.

Issue	Plaintiff's Argument (Antoine)	Defendant's Argument (Superintendent/Taylor)	Held
Whether trial counsel was ineffective for failing to move for a pretrial election	Counsel should have moved pretrial to force the state to identify the incidents and preserve notice objections	Counsel’s choices were reasonable given precedent (Hale, Magana), the trial court’s letter allowing a trial‑time election, and steps counsel took	Counsel was not shown to be deficient; post-conviction court erred in finding ineffective assistance
Whether petitioner was prejudiced by counsel’s alleged failure to move for a pretrial election	But for counsel’s failure, petitioner would have obtained timely notice or obtained relief on appeal	Prejudice not proved; court did not reach prejudice because no deficiency was found	Court did not decide prejudice because it reversed on performance ground

State v. Antoine, 269 Or App 66 (clarified that defendants should seek pretrial elections for adequate notice)
State v. Hale, 335 Or 612 (Supreme Court: remedies for vague indictments include later election or jury concurrence instruction)
State v. Magana, 212 Or App 553 (trial court has discretion on timing of elections; rule is flexible)
State v. Payne, 298 Or App 411 (distinguishes pretrial elections for notice from end‑of‑trial elections for jury concurrence)
Johnson v. Premo, 361 Or 688 (Oregon standard for ineffective assistance: performance and prejudice)
Strickland v. Washington, 466 U.S. 668 (federal ineffective‑assistance standard)
Harrington v. Richter, 562 U.S. 86 (counsel need not be flawless; reasonable miscalculations are permissible)