485
Argued and submitted March 13, 2018, reversed April 15, 2020
JEREMY EMIL ANTOINE,
Petitioner-Respondent,
v.
Jeri TAYLOR,
Superintendent,
Eastern Oregon Correctional Institution,
Defendant-Appellant.
Umatilla County Circuit Court
CV151728; A163943
465 P3d 238
The superintendent of the Eastern Oregon Correctional Institution appeals
a judgment that granted petitioner post-conviction relief. In petitioner’s direct
appeal, State v. Antoine, 269 Or App 66,
344 P3d 69, rev den,
357 Or 324 (2015)
(Antoine I), the Court of Appeals clarified that the burden is on defendants to seek
pretrial elections to obtain adequate notice of the charges against them when the
state’s indictment and pretrial discovery is insufficient. The post-conviction court
therefore concluded that petitioner’s trial counsel performed deficiently by failing
to move to require the state to make a pretrial election as to the criminal acts it
intended to prosecute and that trial counsel’s deficiency prejudiced petitioner. On
appeal, the superintendent argues that the post-conviction court’s deficiency and
prejudice determinations were erroneous and contends that petitioner was not
entitled to post-conviction relief. Held: Petitioner failed to demonstrate that trial
counsel failed to exercise reasonable professional skill and judgment by failing
to move for a pretrial election. Trial counsel did not have the benefit of Antoine I
at the time of petitioner’s trial, and petitioner failed to establish that, given the
state of the law at the time of his trial, constitutionally competent counsel would
have understood then that he should have made an argument insisting on a pretrial election by the state. Accordingly, the post-conviction court erred in granting petitioner’s petition for relief.
Reversed.
J. Burdette Pratt, Senior Judge.
Doug M. Petrina, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Lindsey Burrows argued the cause for respondent. Also
on the brief was O’Connor Weber LLC.
486 Antoine v. Taylor
Before Aoyagi, Presiding Judge, and Egan, Chief Judge,
and Linder, Senior Judge.*
EGAN, C. J.
Reversed.
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 303 Or App 485 (2020) 487
EGAN, C. J.
The superintendent of the Eastern Oregon
Correctional Institution appeals the post-conviction court’s
judgment vacating petitioner’s convictions and remanding
the case for further proceedings. The post-conviction court
granted relief on the ground that the failure of petitioner’s
trial counsel to move for the state to elect the criminal acts
it intended to prosecute before the start of trial constituted
ineffective assistance of counsel, in violation of petitioner’s
rights under Article I, section 11, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution.
The superintendent assigns error to the post-conviction court’s rulings on petitioner’s claims. The superintendent argues that petitioner failed to establish (1) that
a reasonable attorney, at the time of petitioner’s trial, would
have moved for a pretrial election and (2) that petitioner was
prejudiced by trial counsel’s failure to move for a pretrial
election.
We conclude that petitioner did not establish that
his trial counsel failed to exercise reasonable professional
skill and judgment. Therefore, the post-conviction court
erred in its grant of relief to petitioner.1 Accordingly, we
reverse.
I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
We begin with the undisputed facts of the proceedings that gave rise to the claims on which the post-conviction
court granted relief.
A. Underlying Criminal Proceedings
The charges against petitioner “arose from allegations of the young daughter of [petitioner’s] former girlfriend. The victim reported that [petitioner] had, on multiple
different occasions, engaged in various sexual acts with her”
over a two-year period when petitioner was living with the
1
Because we conclude that the post-conviction court erred in its determination that petitioner established that his trial counsel was inadequate, and petitioner must prove both inadequacy and prejudice to prevail, we do not reach the
issue of prejudice.
488 Antoine v. Taylor
victim and her mother. State v. Antoine, 269 Or App 66, 68,
344 P3d 69, rev den,
357 Or 324 (2015) (Antoine I). A grand
jury indicted petitioner on nine felonies: four counts of first-degree sodomy; four counts of first-degree sexual abuse; and
one count of furnishing explicit material to a child. Id. at
68-69. Each charge was pleaded in the statutory wording
of the relevant ORS provision and did not include specifics
about the particular set of facts to which each allegation
related.2 After petitioner was indicted, the state provided
him with “84 pages of documents and six compact discs in
discovery. … The discovery indicated that the victim had
reported a greater number of criminal sexual acts than
were alleged in the indictment.” Id. at 70.
Petitioner filed a demurrer under ORS 135.630(2)3
contending that, even in combination with the discovery
from the state, the indictment was not sufficiently definite and certain as required by ORS 132.550(7).4 Petitioner
argued that “the indictment’s counts … were not tied to
specific facts and the discovery disclosed that the counts
charged in the indictment were but a subset of the number
of criminal acts that the victim had reported.” Id.
The state opposed the demurrer and argued that
“the state could adequately resolve the problem by making
an election of the specific criminal acts for which it would
seek convictions at trial.” Id. at 70. The state described the
purpose of an election as ensuring that all the jurors consider the same incident for each charge during deliberations.
The state indicated that it would make its election after presenting its case-in-chief, and petitioner did not object to that
timing during the hearing on the demurrer.
2
Each of the nine charges alleged “[t]hat as a separate act and transaction
from [each of the other counts]: The defendant, on or between September 1, 2006,
and October 1, 2008, in Washington County, Oregon, did” commit the alleged
conduct with the requisite state of mind.
3
ORS 135.630(2) provides that a criminal defendant may demur to an indictment that does not substantially conform to the requirements of, among other
statutes, ORS 132.510 to 132.560.
4
ORS 132.550(7) requires that an indictment substantially contain a “statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”
Cite as 303 Or App 485 (2020) 489
The trial court concluded that the indictment was
sufficient and overruled the demurrer in a letter opinion. The
court also explained that, “[w]hen the prosecution makes its
election during the course of trial, it must only choose to
rely upon factual incidents relied upon by the grand jury in
returning the indictment.” Id. at 71.
Petitioner moved for an order requiring the state
to disclose grand jury notes because there was discovery
evidence that indicated that the acts alleged by the victim may not have corresponded with the charges in the
indictment. The state responded that the grand jury had
“selected a subset of incidents of abuse for the indictment”
and that the “particular counts [in the indictment] were not
tied to particular factual incidents that occurred. In other
words, they’re representative samples of broader abuse that
occurred.” Id. at 72-73. The state also reiterated both that it
would make its election at the close of its case-in-chief and
that jury concurrence was the reason for such an election.
Petitioner again did not object to the timing of the state’s
election. The trial court denied petitioner’s motion for disclosure of grand jury notes.
At trial, the victim testified to multiple instances
of petitioner making her watch pornography, touching her
“private part” or making her touch his “private part” in different rooms of the house. Petitioner’s defense theory was
that the abuse did not happen, or, if it did, that he was not
the abuser. After presenting its case-in-chief, the prosecutor
made the following elections:
“Count 1, Sodomy in the First Degree, that will relate to an
incident described in the evidence as penis to mouth in the
master bedroom. Count 2 is the penis to mouth incident in
the computer room, Count 3, penis to mouth incident in the
bunk bed room, Count 4, mouth to vagina incident in bunk
bed room, Count 5, touching that occurred in the master
bedroom, Count 6, the master bedroom on another occasion, Count 7, the computer room, Count 8, bunk bed room,
Count 9, a time in the computer room.”
Petitioner moved for a judgment of acquittal on all
eight of the sodomy and sexual abuse counts after the state’s
490 Antoine v. Taylor
election.5 Id. at 74. Petitioner contended that the state’s
method of charging and subsequent election resulted in a
trial on counts never specified by a grand jury and the denial
of petitioner’s right to notice of the exact charges against
him. Id. The state acknowledged that the indictment was
not tied to specific incidents, but it asserted that the grand
jury had properly considered the factual information. Id.
The trial court denied petitioner’s motion. Id. at 75.
To address the problem of the nonspecific and
repeated statutory language in the charges, the trial court
added descriptors to the jury instructions that matched the
state’s elections (e.g., “Sexual Abuse in the First Degree,
Count 5, master bedroom.”). Id. Petitioner objected to the
additional wording as an improper amendment to the indictment because it was not presented to the grand jury, and “he
took exception to the identifying language that the court
added.” Id.
The jury found petitioner guilty on all nine counts.
Id. Petitioner appealed his convictions, assigning error to
the trial court’s adverse rulings on his demurrer, motion for
judgment of acquittal, and objection to the jury instructions.
Id. at 68. On appeal, we affirmed. Id. at 86.
In our analysis, we “agree[d] with [petitioner] that
the indictment itself did not provide him with sufficient
notice, and the problem with inadequate notice, which arose
before trial, was not cured during trial.” Id. at 76. However,
we concluded that the trial court had not erred in overruling
petitioner’s demurrer or denying his motion for judgment of
acquittal. Id. at 86. We reasoned that petitioner’s “lack of
notice was something that he should have attempted to cure
by moving to require the state to make its election before
trial.” Id. at 84. A pretrial election would have allowed petitioner to have the information “in time for [him] to tailor his
defense to those specific incidents.”6 Id. at 79. Further, we
5
Petitioner had already unsuccessfully moved for a judgment of acquittal on
Count 9, furnishing sexually explicit material to a child. Antoine I, 269 Or App at
74 n 5.
6
We also rejected petitioner’s arguments that the jury instructions improperly amended the indictment or prejudiced petitioner’s right to notice or protection against double jeopardy. Antoine I, 269 Or App at 85-86.
Cite as
303 Or App 485 (2020) 491
interpreted the Supreme Court’s decision in State v. Hale,
335 Or 612,
75 P3d 448 (2003), cert den,
541 US 942 (2004),
as “plac[ing] the burden on a defendant to attempt to procure adequate and timely notice of the charges against him,
even when an indictment that is alleged in the words of the
statute does not provide such notice.” Antoine I,
269 Or App
at 78.
B. Post-Conviction Proceedings
Thereafter, petitioner initiated this post-conviction
proceeding. He alleged that his trial counsel was inadequate
and ineffective for not moving for the state to make a pretrial election, both to give petitioner the required notice of
the charges against him and to preserve the issue for appellate review.
The post-conviction court concluded that our opinion
in Antoine I “compel[led] a finding” in favor of petitioner, and
the court granted relief. The post-conviction court reasoned
that, because we determined that petitioner “could have and
should have moved for the state to elect the criminal acts
it wished to prosecute before the start of trial,” petitioner’s
trial counsel was ineffective and inadequate for failing to do
so. Additionally, the post-conviction court determined that
the deficiency prejudiced petitioner because, had his trial
counsel moved for a pretrial election, petitioner would either
have been provided with the proper notice if the motion were
granted or his conviction would have been reversed if the
motion were denied.
The superintendent appeals. The superintendent
assigns error to the post-conviction court’s grant of relief
and contends that the court erred in ruling that petitioner’s
trial counsel was ineffective and inadequate for failing to
move for a pretrial election. The superintendent argues both
that petitioner’s trial counsel’s performance was not deficient and that petitioner did not prove prejudice.
II. STANDARD OF REVIEW AND APPLICABLE
LEGAL FRAMEWORK
We review a post-conviction court’s grant or denial
of relief for legal error, and we accept the court’s factual
492 Antoine v. Taylor
findings if there is evidence in the record to support them.
Green v. Franke, 357 Or 301, 312,
350 P3d 188 (2015). If the
post-conviction court did not make findings as to all the
facts pertinent to our analysis, we will presume that the
court found the facts consistently with its conclusion. Ball
v. Gladden,
250 Or 485, 487,
443 P2d 621 (1968). That presumption, however “is necessarily dependent on the trial
court’s application of the correct legal analysis. If the court
is operating under a misunderstanding as to the applicable
legal principles … we will not infer that the court decided
facts consistently with that erroneous legal construct.” State
v. Ellis,
252 Or App 382, 390,
287 P3d 1215 (2012), rev den,
353 Or 428 (2013).
Criminal defendants have a constitutional right
to counsel under Article I, section 11, and under the Sixth
Amendment. Montez v. Czerniak, 355 Or 1, 6-7,
322 P3d 487,
adh’d to as modified on recons,
355 Or 598,
330 P3d 595
(2014). A criminal defendant may bring a claim contending
that he has been deprived of his constitutional right to counsel under both the state and federal constitutions.
To prevail under Article I, section 11, a petitioner
must prove two elements: (1) that trial counsel “failed to
exercise reasonable professional skill and judgment” and
(2) that “petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699,
399
P3d 431 (2017). The two-element standard under the Sixth
Amendment is functionally equivalent.
Id. To prevail on a
Sixth Amendment claim, a petitioner must establish both
that “trial counsel’s performance ‘fell below an objective
standard of reasonableness,’ ” and also that “there was a
‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ”
Id. at 700 (quoting Strickland v. Washington,
466 US
668, 688, 694,
104 S Ct 2052,
80 L Ed 2d 674 (1984)).7
A criminal defendant is not entitled to perfect representation but instead to a reasonably competent attorney:
7
Neither party suggests that, with respect to the claims at issue in this case,
the Sixth Amendment standard regarding the alleged ineffectiveness of counsel differs from the Oregon standard that we have discussed. Accordingly, our
analysis applies to the claims under both constitutions.
Cite as 303 Or App 485 (2020) 493
“Just as there is no expectation that competent counsel will
be a flawless strategist or tactician, an attorney may not be
faulted for a reasonable miscalculation or lack of foresight
or for failing to prepare for what appear to be remote possibilities.” Harrington v. Richter,
562 US 86, 110,
131 S Ct 770,
178 L Ed 2d 624 (2011).
In reviewing the adequacy of trial counsel’s representation, a post-conviction court must consider “the lawyer’s
perspective at the time,” without the benefit of hindsight.
Lichau v. Baldwin, 333 Or 350, 360,
39 P3d 851 (2002).
Moreover, the post-conviction court should determine
“whether the strategy that defense counsel did employ was
reasonable” rather than focusing only on the possible benefits of strategies that trial counsel did not pursue. Pereida-Alba v. Coursey,
356 Or 654, 674,
342 P3d 70 (2015); see
Montez, 355 Or at 24 (“The fact that petitioner would, in
retrospect, have implemented his … defense in one or more
different ways is not a ground for post-conviction relief if
counsel acted reasonably in presenting the defense that
they did.”). We review the post-conviction court’s decision
with those principles in mind.
The post-conviction court concluded that petitioner’s trial counsel was ineffective because he failed to move
for a pretrial election. Because we must evaluate counsel’s
performance according to the law at the time of the trial, see
Burdge v. Palmateer, 338 Or 490, 498,
112 P3d 320 (2005)
(“[W]e look at the [law] as a lawyer would have seen it at the
time.”), we begin with an overview of the role of motions for
elections in Oregon criminal trials. We preface our description of the evolution of the law by noting our recent acknowledgment that, “[u]nfortunately, the term ‘elect’ and ‘motion
to elect’ have been used in caselaw to refer to different
motions, made for different purposes, at different stages of
litigation, potentially resulting in confusion.” State v. Payne,
298 Or App 411, 413,
447 P3d 515 (2019).
A. Elections: Case Law Before Petitioner’s Trial
Petitioner’s trial took place in 2011. At that time,
as the post-conviction court recognized, the leading case on
addressing notice problems created by statutorily worded
indictments was Hale, which was decided in 2003.
494 Antoine v. Taylor
In Hale, the defendant was charged with 13 counts
of aggravated murder and other noncapital crimes. The
defendant
“demurred to the form of the indictment … on the ground
that the six aggravated murder counts that alleged that he
had committed murder to conceal the crime of third-degree
sexual abuse and to conceal the identity of the perpetrator
of the crime of third-degree sexual abuse … were impermissibly vague.”
335 Or at 617-18.
The defendant argued that he was “entitled to
notice of the particulars of the offenses he [was] alleged to
have committed” and that, because the indictment did not
specify the victims of the offense, there were “three decedents who [were] all potential victims of that crime.” Id. at
618. The trial court denied the demurrer.
Id. at 619. The
Supreme Court affirmed the trial court and concluded that
the defendant was not “entitled to require the state to make
the indictment more definite and certain” through demurrer.
Id. at 620-21. The court “agree[d] with [the] defendant
that … defendant was entitled to know the state’s precise
theory of the case and the facts and circumstances the state
was relying on to support the aggravated murder counts.”
Id. However, the court did not agree that demurrer was the
“proper (or only) vehicle for ensuring” that the defendant
had appropriate notice.
Id. at 621. The court noted that the
“[d]efendant had other avenues available to him for acquiring that information, such as later moving the court to
require the state to elect a specific incident … or requesting special jury instructions to clarify the matter.”
Id.
Thus, in Hale, the Supreme Court described options
that a defendant could pursue to procure notice when the
indictment was not sufficiently precise to determine which
of multiple possible facts and circumstances supported a
charge: A defendant could make a motion for the prosecution to elect a specific incident or request a jury concurrence
instruction. The Hale court did not specify whether “later
moving the court” to require an election referred to a pretrial election or an election during the course of trial. The
most natural understanding of that reference, however,
Cite as 303 Or App 485 (2020) 495
would be a motion made after the pretrial stage of the proceedings. Moreover, the other option that the court listed, a
jury concurrence instruction, serves the same function as
an end-of-trial election, ensuring that the jury “concurs on
the same occurrence in reaching a verdict on a single count
of a charged crime.” Payne,
298 Or App at 421. That reference, too, suggested that the proper timing of a motion to
elect was after the pretrial stage.
In 2007, this court addressed prosecutorial elections, affirming a trial court’s denial of a defendant’s motion
for a pretrial election. State v. Magana, 212 Or App 553,
565,
159 P3d 1163 (2007). In Magana, the defendant argued
on appeal that his ability to defend himself was prejudiced
because the trial court denied his motion for a pretrial election.
Id. We noted that “the timing of any election is within
the discretion of the trial court: ‘… No statute of this
state prescribes the time when an election must be made.’ ”
Id. at 564 (quoting State v. Kibler,
1 Or App 208, 212,
461 P2d
72 (1969)) (internal citations omitted; alteration in original).
We also described the interests that a trial court balances
when ruling on a motion for an election: “ ‘[T]he rule governing election is flexible so that the state will not be forced to
make a choice when it cannot intelligently do so, but which
will afford the defendant sufficient time, after the choice has
been made, to defend himself properly.’ ”
Id. at 565 (quoting
State v. Lee,
202 Or 592, 607,
276 P2d 946 (1954)) (alteration
in original).
B. Elections: Case Law After Petitioner’s Trial
In 2015, in Antoine I, we interpreted Hale to place
an affirmative duty on criminal defendants to obtain the
notice to which they are entitled, and we indicated that a
defendant should attempt to remedy his lack of notice “by
moving to require the state to make its election before trial.”
269 Or App at 80. No prior case, from either this court or the
Supreme Court, had held or otherwise explicitly suggested
that such a motion should be made pretrial. And Antoine I
was, as we have described, the direct appeal of petitioner’s criminal convictions. Thus, the guidance we gave in
Antoine I was not available to petitioner’s criminal trial
counsel at the time of petitioner’s criminal trial.
496 Antoine v. Taylor
Four years later, we further clarified the types and
timing of motions for election. See Payne, 298 Or App at 416,
421. We explained in Payne that a defendant may make a
motion to require a prosecutor to elect a single factual occurrence that forms the basis for an individual charge at two
different stages of litigation: (1) pretrial or early in the proceedings or (2) after the prosecutor’s case-in-chief or at the
close of arguments.
Id. Each of the aforementioned timing
options serves a different purpose. A defendant may move
for a prosecutor to make a pretrial election to get more information about a charge against him when the “indictment is
sufficient to withstand a demurrer but still may fail to give
a defendant adequate notice of the precise charges against
him.”
Id. at 417. In contrast to a pretrial election motion,
a defendant may move for the prosecutor to make an election after the prosecutor’s case-in-chief or at the end of the
trial to “ensure that the jury agrees as to every necessary
element or concurs on the same occurrence in reaching a
verdict on a single count of a charged crime.”
Id. at 421.
III. COUNSEL’S PERFORMANCE IN
PETITIONER’S DEFENSE
We turn to trial counsel’s actions in this case. Again,
when reviewing a claim of ineffective assistance of counsel,
we determine whether petitioner “demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment.” Lichau,
333 Or at 359. As noted above, in making our determination, we “make every effort to evaluate a lawyer’s conduct
from the lawyer’s perspective at the time, without the distorting effects of hindsight.”
Id. at 360. “If a lawyer exercising reasonable professional skill would have recognized the
existence of an issue and would have concluded under the
circumstances that the benefits of raising it outweighed the
risks of doing so, failing to raise the issue may constitute
inadequate assistance of counsel.” Krieg v. Belleque,
221 Or
App 36, 40,
188 P3d 413, rev den,
345 Or 317 (2008). When,
as here, the law was unsettled regarding the issue trial
counsel did not raise, “we must consider whether ‘the benefits of raising [the] issue [were] so obvious that any lawyer
exercising reasonable professional skill and judgment would
do so.’ ” Garner v. Premo,
283 Or App 494, 507,
389 P3d 1143,
Cite as
303 Or App 485 (2020) 497
rev den,
361 Or 885 (2017) (quoting Ross v. Hill,
235 Or App
340, 344,
231 P3d 1185, rev den,
349 Or 56 (2010)) (second
brackets in original).
Petitioner’s trial counsel first raised the issue of
notice by filing a demurrer to the charges against petitioner,
contending that the indictment was not sufficiently definite
and certain, even in combination with discovery from the
state. Antoine I, 269 Or App at 70. During the hearing on
petitioner’s demurrer, the prosecutor described an end-oftrial election as the solution to the issue raised by petitioner’s demurrer.
Id. The trial court’s letter opinion explaining its decision overruling petitioner’s demurrer stated that
“when the prosecution makes its election during the course
of trial, it must only choose to rely upon factual incidents
relied upon by the grand jury in returning the indictment.”
According to trial counsel’s affidavit, offered during the
post-conviction proceeding, he interpreted the court’s letter
opinion as ruling that the state would be allowed to make its
election during, instead of before, the trial.
When the trial court overruled petitioner’s demurrer, petitioner was left in the situation described in Hale:
charged under an indictment that was sufficient to survive
demurrer but insufficient to give him notice of which factual circumstances the state would rely on for each charge.
Consequently, trial counsel moved for an order requiring
the state to disclose grand jury notes to clarify what factual
circumstances the grand jury had based each charge on.
Antoine I, 269 Or App at 71-72. When that was unsuccessful,
trial counsel moved for a judgment of acquittal, again arguing that the notice was insufficient. Although the motions
that petitioner’s trial counsel made were unsuccessful, they
show that he was aware of and attempting to remedy the
notice issue.8 At the end of the state’s case-in-chief, the
8
The Oregon Supreme Court has acknowledged that seeking clarity about
the facts and circumstances on which the grand jury based its finding of probable
cause and alignment between those facts and the charges in the indictment is
one way to obtain sufficient notice. See Hale, 335 Or at 618 (defendant sought
notice by challenging the indictment as impermissibly vague and asking the
court to send the matter back to the jury for clarification of the facts and circumstances underlying the charge); see also State v. Lotches,
331 Or 455, 465-66,
17
P3d 1045 (2000), cert den,
534 US 833 (2001) (defendant argued on direct review
that the trial court should have stricken charges sua sponte when the indictment
498 Antoine v. Taylor
prosecution made its election. Id. at 74. Additionally, the
trial court instructed the jury on the factual occurrence on
which each charge was based. Id. at 75.
Petitioner argues that Antoine I did not announce
new law. But it did. Before that opinion, the Supreme Court,
in Hale, had identified only two remedies, other than demurrer, that a defendant might seek to obtain adequate notice:
(1) requiring the prosecutor to make an election at an
unspecified later time and (2) requesting jury instructions
on the factual occurrence on which each charge was based.
Trial counsel’s actions resulted in petitioner receiving both
of those remedies. Our decision in petitioner’s direct appeal
in Antoine I clarified that the burden is on defendants to seek
pretrial elections to obtain adequate notice of the charges
against them, but that holding provided no guidance to
defense counsel at the time of petitioner’s trial. Petitioner
nevertheless contends that, after the court issued its letter opinion referencing a prosecutorial election during the
course of trial, his trial counsel should have made a motion
to require the state to make a pretrial election. To be sure, a
reasonable defense attorney could have moved to require the
prosecutor to make a pretrial election, “[b]ut the question in
this post-conviction case is whether a reasonably competent
defense attorney would have made that argument under the
circumstances in this case.” Hagberg v. Coursey, 269 Or App
377, 387,
344 P3d 1118, rev den,
358 Or 69 (2015) (emphasis
added).
The circumstances here include the state of the law
after the Supreme Court’s opinion in Hale and our subsequent holding in Magana that the timing of prosecutorial
elections is within the discretion of the trial court, the trial
court’s letter opinion describing the prosecutor’s election as
occurring “during the course of trial,” and the actions that
trial counsel did take. Petitioner’s counsel, believing that the
trial court had granted the state’s motion to make its election during the course of trial, attempted to procure sufficient notice (1) through a motion for disclosure of grand jury
failed to sufficiently state particular facts and circumstances; the Supreme Court
noted that the defendant would have been entitled to require specification if he
had raised the issue at trial).
Cite as 303 Or App 485 (2020) 499
notes and (2) by moving for a judgment of acquittal after the
state’s election at the end of the state’s case-in-chief.
Given the state of the law at the time of petitioner’s
trial, especially Hale, petitioner has not established that
constitutionally competent counsel would have understood
then that he should have made an argument insisting on a
pretrial election by the state or that there was an obvious
benefit to doing so under the circumstances. Therefore, we
conclude that the post-conviction court erred in determining
that petitioner proved that his trial counsel failed to exercise reasonable professional skill and judgment and granting relief under the Oregon and United States Constitutions.
Because we conclude that the post-conviction court erred
as to counsel’s performance, we do not reach the issue of
prejudice.
Reversed.
