Antoine v. Taylor, 499 P.3d 48

Antoine was indicted on four first‑degree sodomy counts, four first‑degree sexual abuse counts, and one count of furnishing explicit material to a minor; counts used statutory language and covered a two‑year time window without identifying specific incidents.
Discovery showed more alleged incidents than the number of counts; defense counsel demurred arguing the indictment failed to give adequate notice and violated double jeopardy and constitutional notice rights.
Trial court overruled the demurrer, denied motions for grand jury notes and a pretrial election, and the prosecutor elected specific incidents only after presenting the state’s case; jury convicted on all counts.
On direct appeal the Court of Appeals held the indictment failed to provide proper pretrial notice but concluded a demurrer was not the proper vehicle and suggested a motion for a pretrial election instead (Antoine I).
Antoine filed a post‑conviction ineffective‑assistance claim for failing to move for a pretrial election; the trial post‑conviction court granted relief, but the Court of Appeals reversed (Antoine II), holding counsel’s performance was not deficient given the state of the law (notably State v. Hale).
Oregon Supreme Court affirmed the Court of Appeals: evaluating counsel’s conduct from the time of trial, the court held counsel was not deficient in litigating notice primarily by demurrer and that the post‑conviction court erred in granting relief.

Issue	Antoine's Argument	Taylor/Superintendent's Argument	Held
Whether trial counsel performed deficiently by raising inadequate‑notice claims via demurrer instead of moving for a pretrial election	Counsel should have moved for a pretrial election because Hale foreclosed using a demurrer to obtain pretrial notice	Given the state of the law (including Hale and prior authorities), a reasonable lawyer could treat a demurrer as the appropriate mechanism	Counsel was not deficient; demurrer was a reasonable approach under the law at the time
Whether Hale required election (pretrial) rather than demurrer as the remedy for insufficient pretrial notice	Hale should be read to make pretrial election the proper (or only) remedy for inadequate pretrial notice	Hale is ambiguous on that point and did not expressly overrule long‑standing precedent treating demurrer as proper	Hale’s text was not obviously read by any reasonable attorney to bar demurrers; petitioner’s reading was not the only reasonable reading
Whether post‑conviction relief was warranted based on prejudice from counsel’s alleged failure to seek pretrial election	Petitioner argued prejudice because a pretrial election would have yielded notice or appellate reversal	Superintendent argued petitioner cannot show deficient performance and thus no basis for relief	Post‑conviction court erred; petitioner failed to show deficient performance, so relief was improper

State v. Hale, 335 Or. 612, 75 P.3d 448 (2003) (discusses jury concurrence and suggests election or special jury instructions as avenues for identifying the state’s theory)
Burdge v. Palmateer, 338 Or. 490, 112 P.3d 320 (2005) (post‑conviction standard: must show that reasonable counsel would have recognized an obvious ambiguity or issue at the time)
Strickland v. Washington, 466 U.S. 668 (1984) (federal standard for ineffective assistance: deficient performance and prejudice)
State v. Lotches, 331 Or. 455, 17 P.3d 1045 (2000) (failure to demur or timely object to indictment waives sufficiency challenge)
State v. Smith, 182 Or. 497, 188 P.2d 998 (1948) (Article I, §11 notice challenges may be raised by demurrer; failure to demur waives the claim)
State v. Antoine (Antoine I), 269 Or. App. 66, 344 P.3d 69 (2015) (Court of Appeals: indictment failed to give proper pretrial notice but demurrer not the proper vehicle; suggested pretrial election)
Antoine v. Taylor (Antoine II), 303 Or. App. 485, 465 P.3d 238 (2020) (Court of Appeals reversed post‑conviction relief, holding counsel’s performance was not deficient given the law at trial time)