Antoine v. Taylor

                                      760

Argued and submitted April 29; decision of Court of Appeals affirmed, judgment
    of circuit court reversed, and case remanded to circuit court for further
                         proceedings November 24, 2021


                  JEREMY EMIL ANTOINE,
                     Petitioner on Review,
                               v.
                        Jeri TAYLOR,
                       Superintendent,
            Eastern Oregon Correctional Institution,
                    Respondent on Review.
           (CC CV151728) (CA A163943) (SC S067870)
                                   

    Petitioner sought post-conviction relief, contending that his trial counsel had
provided inadequate assistance by challenging the adequacy of pretrial notice
provided by the indictment through a demurrer rather than a motion to compel a pretrial election. The post-conviction court granted relief, but the Court
of Appeal reversed, holding that trial counsel’s performance was not deficient.
Held: (1) Trial counsel’s performance was not deficient, given the state of the law
at the time of defendant’s trial, and (2) the post-conviction court erred in granting relief.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.



    On review from the Court of Appeals.*
   Lindsey Burrows, O’Connor Weber LLC, Portland, argued
the cause and filed the briefs for petitioner on review.
   Doug Petrina, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices.…
______________
    * On appeal from Umatilla County Circuit Court, J. Burdette Pratt, Judge.

, 

 (2020).
    … Nakamoto, J., did not participate in the consideration or decision of this
case.
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  NELSON, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
  Duncan, J., filed a concurring opinion.
762                                          Antoine v. Taylor

         NELSON, J.
          This is a post-conviction case in which petitioner
claims that his trial counsel provided inadequate assistance. At petitioner’s criminal trial for multiple counts of
first-degree sexual abuse and first-degree sodomy, his counsel raised a set of challenges to the validity of the indictment
and to the manner in which the case had been charged.
Counsel argued that the indictment failed to provide adequate notice of the basis for the charges against petitioner
and otherwise was defective. Petitioner was convicted and,
on appeal, the Court of Appeals affirmed his convictions.
Although the Court of Appeals rejected some of petitioner’s
challenges to the indictment on the merits, it held that petitioner’s claims about inadequate notice should not have been
raised in a demurrer and, instead, that petitioner “could
have moved to discover the state’s election of the specific
criminal acts that the state would prosecute at trial, in time
for [him] to tailor his defense to those specific incidents.”
State v. Antoine, 

, 

, rev den, 

 (2015) (Antoine I).
         Petitioner later filed this post-conviction challenge,
alleging that trial counsel provided inadequate assistance
by failing to move for a pretrial election. The post-conviction
court granted relief, but the Court of Appeals reversed that
decision, holding that trial counsel had not performed deficiently, given the state of the law at the time of petitioner’s
trial. Antoine v. Taylor, 

, 

(2020) (Antoine II). We allowed review and now affirm the
decision of the Court of Appeals.
                     I. BACKGROUND
A.    Trial Proceedings
         In 2010, petitioner was charged with four counts of
first-degree sodomy, ORS 163.405(1)(b); four counts of first-degree sexual abuse, ORS 163.427(1)(a)(A); and one count
of furnishing sexually explicit material to a minor, former
ORS 167.054 (2009), repealed by Or Laws 2011, ch 681, § 10.
The victim of those offenses was the child of petitioner’s former girlfriend, with whom petitioner had lived for approximately two years.
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         The indictment was worded as follows. The first
count—a sodomy charge—alleged that “[t]he defendant,
on or between September 1, 2006 and October 1, 2008, in
Washington County, Oregon, did unlawfully and knowingly
have deviate sexual intercourse with [the victim], a child
under 12 years of age.” The other three sodomy charges—
counts two, three, and four—used identical text but specified that they each referred to “a separate act and transaction from that alleged” in the prior counts.
         The four counts of sexual abuse alleged “[t]hat as a
separate act and transaction from that alleged in [the prior
counts]: The defendant, on or between September 1, 2006
and October 1, 2008, in Washington County, Oregon, did
unlawfully and knowingly subject [the victim], a child under
14 years of age, to sexual contact by touching [the victim’s]
genitalia, a sexual and intimate part of the child.”
         The final count alleged “[t]hat as a separate act and
transaction from that alleged in Counts 1 to 8: The defendant, on or between September 1, 2006 and October 1, 2008,
in Washington County, Oregon, did unlawfully and intentionally furnish and permit [the victim], a child, to view sexually explicit material, defendant knowing that the material was sexually explicit material.”
         Petitioner’s trial counsel demurred to the indictment
in July 2010. He argued that the indictment violated applicable statutes and several provisions of the Oregon and United
States Constitutions because it failed to provide adequate
notice and protection from double jeopardy. He stated that
“discovery reveals that there are inconsistent statements
throughout as to when or where an act is alleged to have
happened and there appear to be some unknown amount of
times that it is alleged to have happened.” (Footnote omitted.) At a hearing on the demurrer, defense counsel argued
that the offenses needed to be pleaded with more specificity
and that such a substantive change could only be accomplished by resubmission to the grand jury, rather than by
election or additional discovery.
         The state argued that the indictment was sufficiently definite, that the inconsistencies in discovery were
764                                              Antoine v. Taylor

not significant, and that any issue would be resolved through
an election at the close of the state’s case.
         The trial court informed counsel that it would take
the issue under advisement and issue a short opinion. The
court added that it would need to review the discovery in
order to evaluate the parties’ arguments. The parties agreed
to provide the relevant portions of the discovery material to
the trial court.
         On January 13, 2011, the trial court sent a letter
opinion to the parties, overruling petitioner’s demurrer. The
trial court noted that the police reports relating to the sodomy and sex abuse charges were “relatively brief and manageable” and concluded that they provided sufficient notice.
However, the trial court made an additional ruling that,
   “[i]n order to safeguard the constitutional rights of the
   accused, it is imperative that the petit jury base a finding of
   guilt on the same conduct that the grand jury has based its
   probable cause determination. Therefore, 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.”
(Internal citation omitted.)
         Based on that ruling, trial counsel filed another
motion, seeking access to the grand jury notes. He argued
that he needed to have access to those notes in order to know
which factual incidents were the basis for the charges. The
trial court ruled that petitioner’s motion was premature, as
the issue of whether the state’s election corresponded to the
grand jury’s findings would not arise until the state made
the election, so it delayed ruling on the motion.
        Trial began in March 2011, before a different judge.
Before the jury was empaneled, petitioner’s trial counsel
again raised the grand jury notes issue with the trial court.
Trial counsel reported that the prosecutor had recently
sent some new statements from the victim, which contained
inconsistencies. Trial counsel argued that grand jury notes
were necessary in order to cross-examine the witnesses
and to evaluate whether the state’s election corresponded to
what was submitted to the grand jury.
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         The prosecutor responded that the grand jury had
not based its charges on specific factual incidents. Rather,
the state had asked the grand jury to charge a “representative sample” of charges from the evidence presented to it. As
he explained somewhat later in the hearing, the “grand jury
did not consider specific facts related to specific charges.”
The prosecutor explained his views on election as follows:
     “If we’ve already at the grand jury stage decided that
     Count 1 is the time in the kitchen, my election has to be the
     same. I can’t elect it differently. I can’t change it in midcourse. That hasn’t happened in this case. So I haven’t—we
     haven’t been tied to anything yet. So I don’t know right now
     what Count 1 will relate to. I’ll elect at the end of my case
     and the same with Counts 2 through 9.”
         Petitioner’s trial counsel responded by arguing, as he
had previously, that that method of charging was improper,
stating, “I think the heart of the question here is … can a
grand jury find generally a violation of a statutory scheme
not tied to a specific incident and then allow the prosecution
to elect a specific incident that’s not necessarily been found
by the grand jury.”
        The trial court denied defendant’s motion, and the
case proceeded to trial.
         At the close of evidence, trial counsel again moved
for a judgment of acquittal on all counts, for the same reason
that he had earlier, a motion that was again denied. Trial
counsel likewise objected to language in the jury instructions corresponding to the state’s election.
         The jury unanimously convicted petitioner on all
counts. He was sentenced to 300 months in prison, followed
by lifetime post-prison supervision.
B.    Appellate Proceedings
         Petitioner appealed. On appeal, he argued that the
indictment was constitutionally deficient because it failed to
provide him with sufficient notice and that the prosecutor’s
election had operated as an unconstitutional amendment to
the indictment. Like trial counsel, appellate counsel treated
those issues as intertwined, focusing on the argument that
766                                                       Antoine v. Taylor

the indictment was defective because the grand jury had not
based it on specific conduct.
         Beginning with the notice issue, the Court of
Appeals concluded that the “charging process failed to
provide defendant with proper notice of the charges before
trial.” Antoine I, 

. But the Court of Appeals
nonetheless ruled against petitioner on that issue, reading
this court’s decision in State v. Hale, 

, 

 (2003), cert den, 

, 

, 

 (2004), to hold that the proper remedy for inadequate
pretrial notice was not for a defendant to file a demurrer
but for the defendant to seek pretrial clarification through
other mechanisms. Antoine I, 

.1 The Court
of Appeals held that “defendant could have moved to discover the state’s election of the specific criminal acts that
the state would prosecute at trial, in time for defendant to
tailor his defense to those specific incidents.” 

. In a
footnote, the Court of Appeals specified that it did “not view
Hale as impeding a defendant from filing a motion for the
state’s election early in the case,” though it acknowledged
that Hale could be read otherwise. 

 at 79 n 8.
        The Court of Appeals did not, however, view Hale as
necessarily barring its consideration of petitioner’s related
argument that the charging of representative counts violated Article VII (Amended), section 5(3). Antoine I, 

. The Court of Appeals rejected that argument
on the merits. 

.
C. Post-Conviction Proceedings
          Petitioner then filed a petition for post-conviction
relief, alleging inadequate assistance of counsel, in violation
of Article I, section 11, and the Sixth Amendment, based
on trial counsel’s failure to move for a pretrial election. In
an affidavit submitted by petitioner, trial counsel explained
    1
      Although the Court of Appeals read Hale as so holding, the Court of Appeals
expressed some skepticism that that holding was correct, noting that Hale “did
not explain why, under the statutory scheme concerning demurrers, if a defendant establishes that an indictment fails to provide sufficient notice, the defendant is not entitled to allowance and to the remedy prescribed by the legislature
through ORS 135.670: dismissal of the indictment, with possible leave to refile.”
Antoine I, 

 n 7.
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that his “decision to not move for pre-trial ‘election’ was
neither for tactical or strategic reasons but based upon my
belief, albeit wrong, that the state was entitled to wait until
the end of their case to make their ‘elections.’ ” Petitioner
submitted the trial transcript and trial counsel’s written
demurrer as exhibits.
          After a trial, the post-conviction court granted
relief, reasoning that “[t]he findings and conclusions made
by the Court of Appeals in this case compel a finding that
the Petitioner is entitled to post-conviction relief.” As to prejudice, the post-conviction court reasoned that, had a motion
for a pretrial election been filed, the “judge would have
either granted the motion and Petitioner would have been
provided with proper notice or the judge would have denied
the motion and the conviction would have been reversed by
the Court of Appeals. In either even[t], the failure had a tendency to affect the outcome of the proceeding.”
        The superintendent appealed. The Court of Appeals
reversed the decision of the post-conviction court, concluding that petitioner had not shown deficient performance:
     “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 pre-trial election by the state or that there was an obvious benefit to doing so under the circumstances.”
Antoine II, 

. This court allowed review.
                          II. ANALYSIS
A.    Standards for Deficient Performance of Counsel
         Both Article I, section 11, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution
provide guarantees against inadequate or ineffective counsel in criminal proceedings. To obtain relief under either
constitution, a post-conviction petitioner must show “that
counsel failed to exercise reasonable professional skill and
judgment, and that the petitioner suffered prejudice as a
result of counsel’s inadequacy.” Johnson v. Premo, 

, 

 (2017). Under most circumstances,
768                                         Antoine v. Taylor

the state and federal standards are “functionally equivalent.” Montez v. Czerniak, 

, 

, adh’d
to as modified on recons, 

, 

 (2014).
          We begin with the first prong of the analysis,
whether petitioner has shown that counsel performed deficiently. To prove deficient performance, it is not enough to
show “that another lawyer would have tried the case differently” or “that a reviewing court would disagree with that
counsel’s decision.” Krummacher v. Gierloff, 

,

 (1981). We have explained that “[t]he constitution gives no defendant the right to a perfect defense,” 

, and that whether deficient performance can be shown
will depend on whether counsel’s actions or inaction reflected
an absence of “professional skill and judgment.” 

 at 875-
76; see also State ex rel Juv. Dept. v. Geist, 

, 190-
91, 

 (1990) (“A particular tactical decision will
constitute inadequate assistance of counsel only if a court
affirmatively finds that no adequate counsel would have followed that tactic under the circumstances and, therefore,
that following that tactic reflected an absence or suspension of professional skill and judgment.” (Emphasis in original.)). Moreover, in evaluating whether counsel exercised
reasonable professional skill and judgment, we “must make
every effort to evaluate a lawyer’s conduct from the lawyer’s
perspective at the time, without the distorting effects of
hindsight.” Lichau v. Baldwin, 

, 

(2002); see Strickland v. Washington, 

, 

, 

 (1984) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”).
          In applying those standards, our decision in Burdge
v. Palmateer, 

, 

 (2005), is the most
pertinent. In that case, the petitioner had been sentenced
under ORS 137.635, a statute mandating determinate sentences when the defendant had qualifying prior convictions.

. The petitioner had been convicted in three
separate cases, which were all sentenced at the same time,
and the trial court had determined that the convictions in
the first case triggered determinate sentences in the second
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and third cases. Id. at 494. Around two years later, the Court
of Appeals had held, in State v. Allison, 

,

, rev den, 

 (1996), that ORS 137.635
applied only where “one finding of guilt preceded the defendant’s committing the crime that led to the other finding of
guilt,” Burdge, 

, a determination that made
ORS 137.635 (1993) inapplicable to the petitioner’s case. He
sought post-conviction relief, claiming that counsel had performed deficiently by failing to make the argument that the
Court of Appeals had later accepted in Allison. Burdge, 

.
        We held that counsel had not performed deficiently.
We first emphasized that the petitioner’s argument, which
the Court of Appeals had accepted,
   “incorrectly assume[d] that, because a court eventually recognized a statute’s ambiguity, any lawyer exercising reasonable professional skill and judgment would have done
   the same. But issues do not recognize themselves; the task
   of identifying and evaluating potential issues rests on the
   skills of the lawyer. Although that is a skill, the Court of
   Appeals’ majority nevertheless failed to apply the ‘reasonable
   professional skill and judgment’ test to its exercise.”

 (emphasis in original). That is, an appellate decision issued after petitioner’s trial cannot, on its own, demonstrate that trial counsel failed to exercise reasonable professional judgment in failing to spot a debatable legal issue. We
explained that, instead,
   “[i]n situations similar to this one, the post-conviction court
   may grant a petitioner relief only if it can say affirmatively
   that a lawyer exercising reasonable professional skill and
   judgment would have recognized the statutory ambiguity,
   would have seen an interpretation that could benefit the
   defendant, and would have concluded under the circumstances that the potential benefits of advancing that interpretation exceeded any risks.”

 In Burdge, without deciding whether the Court of Appeals
had correctly interpreted ORS 137.635, we concluded that
the claim failed because ORS 137.635 was “not so obviously
ambiguous that any lawyer exercising reasonable professional skill and judgment necessarily would have seen it.”
770                                         Antoine v. Taylor

. We reached that conclusion by “look[ing] at the
statute as a lawyer would have seen it at the time,” noting
that the trial court’s construction of the statute was intuitive, and noting that “nothing makes this statute stand out
as being ambiguous.” 

. We made clear that the
above analysis applies under both the state and federal constitutions. 

.

          In this case, petitioner argues that trial counsel
provided inadequate assistance in relation to his argument
that the charging instrument provided him with insufficient
notice. Petitioner does not take issue with the substance of
trial counsel’s arguments—petitioner argues that counsel
“correctly determined that the charging method and discovery deprived petitioner of notice of the nature and cause
of the accusation against him in violation of Article I, section 11, of the Oregon Constitution, the Sixth and Fourteenth
Amendments to the United States Constitution, and ORS
132.550(7).” Instead, his claim is that counsel performed
deficiently by raising those issues through an improper
mechanism. He argues, as the Court of Appeals held in
petitioner’s direct appeal, that this court’s decision in Hale
made clear that the issue of pretrial notice could not be litigated through a demurrer. As petitioner frames the issue,
“Hale foreclosed one of the two possible ways to obtain pre-trial notice—a demurrer. That left a motion for a pretrial
election as the only method of achieving counsel’s goal and
obtaining petitioner’s constitutionally guaranteed notice.”
The thrust of petitioner’s argument is that his trial counsel should have known—or at least perceived a risk—that
Hale had held that a demurrer could not be used to raise
challenges to inadequate pretrial notice, so he should have
attempted to raise those challenges by moving for a pretrial
election instead, or in addition.

         Unlike Burdge, which involved a pure issue of statutory construction, this case involves both constitutional and
statutory interpretation, as well as interpretation of existing
case law. But Burdge’s analytical approach remains applicable. Here, the necessary premise of petitioner’s argument is
that, after Hale, trial counsel should have understood that
a challenge to the indictment based on its failure to provide
Cite as 

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sufficient notice could not be raised through a demurrer
or, at minimum, that understood the law to be unclear on
that point, such that he should have moved for a pretrial
election to be on the safe side. Burdge makes clear that we
can accept that premise only if the state of the law was “so
obviously ambiguous that any lawyer exercising reasonable
professional skill and judgment necessarily would have seen
it.” 

.

         Both parties’ briefs address other important questions, including whether the indictment in this case provided petitioner with adequate pretrial notice, when an
election before the close of the state’s case is required, what
procedural mechanism was available to petitioner to challenge the sufficiency of the pretrial notice, and whether the
state’s method of charging “representative” counts was permissible. But those questions are not before us in this post-conviction case, and we do not express any view on them
in this opinion. Instead, to address whether petitioner’s
trial counsel performed deficiently, we examine the state of
the law at the time of petitioner’s trial to evaluate whether
trial counsel’s decision to litigate the notice issue primarily
through a demurrer was unreasonable.

B.   Pretrial Notice Before Hale

         There are several sources of law that may entitle
a defendant to pretrial notice, and petitioner’s trial counsel relied on four of them in the trial court. First, ORS
132.550(7) specifies that an indictment must substantially
contain “[a] statement of the acts constituting the offense in
ordinary and concise language, without repetition, and in
such manner as to enable a person of common understanding to know what is intended[.]” Second, Article I, section 11,
of the Oregon Constitution provides that a defendant has
the right “to demand the nature and cause of the accusation against him, and to have a copy thereof.” Third, the
Sixth Amendment to the United States Constitution gives a
defendant a similar right “to be informed of the nature and
cause of the accusation[.]” Trial counsel also relied on the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
772                                                          Antoine v. Taylor

        We have explained before, in the context of ORS
132.550(7), that
    “the objects of an indictment are (1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the
    offense so as to enable the defendant to avail himself of his
    conviction or acquittal thereof if he should be prosecuted
    further for the same cause, and (3) to inform the court of
    the facts charged so that it may determine whether or not
    they are sufficient to support a conviction.”
State v. Cohen, 

, 

 (1980). Petitioner does not appear to dispute that, at least prior to
Hale, a demurrer was an appropriate mechanism to challenge an indictment on the grounds that it failed to comply
with ORS 132.550(7).2 The text of ORS 135.630(2) provides
that a “defendant may demur to the accusatory instrument
when it appears upon the face thereof: … If the accusatory
instrument is an indictment, that it does not substantially
conform to the requirements of ORS 132.510 to 132.560,
135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743[.]”
That provision at least appears to create a statutory remedy
if the statutory right created by ORS 132.550(7) is not satisfied. ORS 135.630(6) also permits demurrer to an accusatory instrument on the ground “[t]hat the accusatory instrument is not definite and certain.” A different provision, ORS
135.640, provides that, “[w]hen the objections mentioned
in ORS 135.630 appear upon the face of the accusatory
instrument, they can only be taken by demurrer,” except
for objections relating to the court’s subject matter jurisdiction or to indictments that fail to state an offense. Taken
together, those statutes are most straightforwardly read as
suggesting that a challenge to an indictment based on ORS
132.550(7) not only can but must be raised by demurrer.
    2
      Petitioner argues that our decisions in State v. Keelen, 

, 

, reh’g den, 

, 

 (1922), and State v. Lee, 

, 

 (1954), and the decision of the Court of Appeals in State v. Magana, 

, 

, rev den, 

 (2007), show that a pretrial election
was, even before Antoine I, an established remedy for inadequate pretrial notice.
All of those cases discussed the timing of elections, but none of those decisions
involved pretrial elections and none of them linked elections to any of the statutory or constitutional rights to pretrial notice that petitioner’s trial counsel relied
on. Moreover, even on defendant’s reading, none of those cases suggest that a
demurrer was an inappropriate mechanism for raising pretrial notice issues.
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         Putting Hale to one side, the appellate case law that
would have been available to petitioner’s trial counsel would
have supported that interpretation of the statutes. This
court has considered challenges to an indictment under
ORS 132.550(7) or its predecessors on numerous occasions,
and it appears that in virtually all of those cases the issue
was raised through a demurrer. See, e.g., State v. Fair, 

, 

 (1998); State v. Sanders, 

,

 (1977); State v. Nussbaum, 

, 

 (1971); State v. Darlene House & James House, 

, 

 (1971); State v. Molitor et ux, 

,

 (1955); State v. Smith, 

, 

 (1948).3 And, in State v. Lotches, 

, 

 (2000), we had declined to consider a challenge to an
indictment under ORS 132.550(7) because the “[d]efendant
did not demur or otherwise object to the indictment. This
court often has held that objections to the sufficiency of an
indictment not timely raised are waived.” 

.
         The Court of Appeals had likewise held that “[a]
demurrer to an indictment on the ground that it is not sufficiently definite or certain is properly raised under ORS
135.630(2), which, by express reference, requires that the
indictment conform to ORS 132.550(7).” State v. Morgan, 

, 753 n 4, 

 (1997), rev den, 

(1998) (emphasis omitted). And it has considered the issue
when raised through a demurrer on numerous occasions.
See, e.g., State v. Wright, 

, 

,
opinion adh’d to as modified on recons, 

, 

, rev den, 

 (2000); State v. Cooper, 

, 

 (1986); State v. Kincaid, 

, 

 (1986); State v. Thompson, 

, 

 (1979).
    3
      In State v. Green, 

, 

 (1966), this court held that an
indictment failed to comply with ORS 135.520(2) (1965), which contained the
requirement now found in ORS 132.550(7). In that case, because part of the
defendant’s argument depended on showing that part of what the grand jury had
alleged was false, this court held that the defendant’s remedy was not through
a demurrer but through a “motion for a directed verdict of acquittal or a motion
in arrest of judgment,” though the court was willing to consider the argument
even though it was raised through an evidentiary objection. Green, 

.
Petitioner does not rely on Green, and, in any event, petitioner’s trial counsel did
renew the arguments that he made in his demurrer in a motion for a judgment of
acquittal.
774                                            Antoine v. Taylor

         Article I, section 11, likewise protects a defendant’s
right to pretrial notice. In our decisions, we have treated
that constitutional provision as closely linked to the statutory provisions discussed above. We have explained, in the
context of earlier but substantially identical statutory provisions, that “when an indictment complies with the foregoing
provisions of our Code, the constitutional guaranty of the
defendant ‘to demand the nature and cause of the accusation against him’ has been fully met.” State v. Nesmith, 

, 

 (1931) (quoting Or Const, Art I, § 11).
The upshot of that linkage between the constitutional right
to notice and the contents of the charging instrument is that
we have held that the Article I, section 11, right to notice
must be raised in a demurrer:

   “Section 11 of the bill of rights (Art. I, section 11, Oregon
   Constitution) provides that, in all criminal prosecutions,
   the accused shall have the right to demand the nature and
   cause of the accusation against him. The opportunity which
   the statute gives an accused to question the sufficiency of
   an indictment as to definiteness and certainty, by demurrer
   on the ground that it does not conform to the provisions of
   chapter 7 of Title 26 of the Code (sections 26-701 to 26-722,
   inclusive, O.C.L.A.), meets the requirements of the bill of
   rights in this respect. If he fails to avail himself of that
   opportunity, he cannot complain afterwards. The failure of
   the indictment to set forth the particular acts constituting
   the offense charged is waived by not making timely objection thereto, as, for example, by failing to demur upon that
   ground before pleading to the merits.”

Smith, 

 (additional internal citations omitted). As we summarized that portion of Smith in State v.
Reinke, 

, 

 (2013), it held that “the
procedural opportunity to demur to the indictment was sufficient to satisfy the constitutional right of an accused to
demand notice of the nature and cause of the accusations
against him or her.” 

. As a result, both this court
and the Court of Appeals have typically addressed challenges to indictments based on Article I, section 11, in tandem with statutory challenges to indictments, as in Smith;
Sanders, 

; Molitor et ux, 

; and Cooper,

.
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         As to the federal constitutional provisions relied on
by petitioner, this court does not appear to have substantively addressed them. Petitioner has not pointed to any
decision suggesting that either of those provisions must be
raised in a different manner from challenges under ORS
132.550(7) or the notice clause of Article I, section 11.
C. The Effect of Hale
        Petitioner does not address the statutes and cases
that would have suggested to many reasonable attorneys
that the appropriate manner to raise the notice issue was
through a demurrer. Instead, he relies almost entirely on
this court’s decision in Hale, which he contends “foreclosed
one of the two possible ways to obtain pretrial notice—a
demurrer.”
         But, with the above background in mind, petitioner’s
reading of Hale is at least not so obvious “that any lawyer
exercising reasonable professional skill and judgment necessarily would have seen it.” Burdge, 

. In
Hale, the defendant had been charged with multiple aggravated murders on several theories, including that the murder had been committed in order “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.” 

. The defendant had demurred to the indictment, arguing that the indictment was deficient because it
failed to specify the identity of the victim or perpetrator of
the underlying sexual abuse offenses or other identifying
details about those offenses. 

. This court quoted
at length the argument that the defendant had made in the
trial court, the focus of which was that
   “ ‘[t]his indictment can’t go to the jury in the form it’s in,
   suggesting that some sexual abuse in the third degree was
   committed somewhere at some time by some persons and
   allowing the jury to return a verdict of guilty to that count
   without agreeing among themselves what sexual abuse
   we’re talking about[.]’ ”
Hale, 

. That is, the central concern identified
by the defendant had been the need for the jury to concur on
a single offense, not the defendant’s difficulty in preparing
for trial.
776                                              Antoine v. Taylor

        Hale began its analysis by discussing Lotches,
which had involved an indictment with similar features, but
to which the defendant had failed to demur. After summarizing Lotches, this court explained that,
   “[a]ccordingly, this case presents squarely the question
   left unanswered in Lotches, viz., whether defendant was
   entitled to require the state to make the indictment more
   definite and certain, and, consequently, whether the trial
   court’s failure to grant defendant’s demurrer was error.”

. In addressing that question, Hale first stated that
   “[w]e continue to agree with defendant that, in this case,
   where the record would support more than one incident
   of third-degree sexual abuse, defendant was entitled to
   know the state’s precise theory of the case and which facts
   and circumstances the state was relying on to support the
   aggravated murder counts. However, we do not agree that
   requiring the trial court to sustain defendant’s demurrer
   to the indictment is the proper (or only) vehicle for ensuring that defendant obtains the information that he seeks.
   Defendant 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 of third-degree sexual
   abuse, or requesting special jury instructions that clarify
   the matter.”

. The court then upheld the sufficiency of
the indictment:
      “In light of the foregoing, we now confirm that, as this
   court so many times has held, an indictment generally is
   sufficient if it charges an offense in the words of the statute. See, e.g., State v. Fair, 

, 

   (1998) (stating and relying on rule; indictment for racketeering sufficient although did not set out specific nexus
   between predicate offenses); State v. Montez, 

, 

 (1990) (aggravated murder; indictment alleging aggravating factor of concealment of other
   crimes sufficient, although did not set out elements of such
   other crimes). Here, there is no question that the indictment used the words of the pertinent aggravated murder
   statute; in fact, it went on to allege the underlying offenses.
   That was sufficient. We find no error.”
Cite as 

 (2021)                                 777

 (footnote omitted). That is, Hale concluded,
albeit without much explanation, that the case at hand fell
in the general class of cases in which a charge in the words
of the statute was sufficient.

         In this case, the parties advocate for different
readings of Hale. The superintendent, focusing on the latter paragraph of Hale, argues that “[t]he fact that the Hale
court upheld the denial of the demurrer establishes that the
pretrial notice was sufficient.” (Emphasis in original.) The
superintendent contends that this court never held that the
notice was insufficient for pretrial purposes. The superintendent argues that, though this court held that the defendant was entitled to know “the state’s precise theory of the
case and which facts and circumstances the state was relying on to support the aggravated murder counts,” 

,
nothing in Hale specified that the defendant was entitled to
know the state’s “precise theory” before trial. The superintendent interprets the reference to election or “requesting
special jury instructions,” 

 as referring to mechanisms
for the defendant to learn the state’s precise theory at the
time of trial.

         Petitioner, like the Court of Appeals in Antoine I,
reads Hale as upholding the trial court’s denial of the
demurrer despite a lack of constitutionally adequate pretrial
notice. Unlike the superintendent, he understands Hale to
hold that a trial court must deny a demurrer even where
a defendant is entitled to additional pretrial notice. As a
result, petitioner reads Hale’s reference to requiring the
state to make an election as specifying the “only possible”
mechanism for a defendant to obtain notice before trial.

        In the posture of this case, we do not need to decide
which interpretation of Hale is correct. As in Burdge, we conclude only that petitioner’s reading of Hale is not so obvious
“that any lawyer exercising reasonable professional skill
and judgment necessarily would have seen it.” Burdge, 

.

       To begin with, although Hale held that the defendant “was entitled to know the state’s precise theory of the
778                                                       Antoine v. Taylor

case,” 

, Hale did not expressly state that the
defendant was entitled to know the state’s theory with precision before trial. Moreover, Hale specified that the defendant’s “avenues” for obtaining that information included
“later moving the court to require the state to elect a specific
incident of third-degree sexual abuse, or requesting special
jury instructions that clarify the matter.” 

 (emphasis added). Both the use of the term “later,” and one of the
two alternative remedies that Hale proposed—special jury
instructions—could support a conclusion that Hale was not
referring to pretrial notice. Similarly, while the word “election” could be used to refer to a choice by the state about
its theory in advance of trial, in Oregon practice that term
more typically had been used to refer to a choice by the state
between competing legal or factual theories during trial.4
See, e.g., State v. Reyes, 

, 

 (1957)
(noting that an election by the state may be required when
the evidence at trial shows multiple acts that could be the
basis for the conviction); State v. Ewing, 

,

 (1944) (so holding). That is, when read in context, the quoted statement from Hale could easily be seen
as responsive to the defendant’s arguments about the need
for jury concurrence, rather than a holding about pretrial
notice. See State v. Pipkin, 

, 

(2013) (holding that, when the evidence supports a conviction on two or more distinct legal or factual theories, either
an election or a jury concurrence instruction is required);
State v. Houston, 

, 

 (1997)
(same).
        In considering whether petitioner’s interpretation of
Hale was so obvious that it would have occurred to “any lawyer exercising reasonable professional skill and judgment,”
Burdge, 

, we also take into account what was
absent from Hale. Hale did not address (much less purport
to overrule) this court’s many prior decisions holding that
statutory or Article I, section 11, notice issues can or even
must be raised in a demurrer. Hale did address Sanders, 

, the most recent decision of this court holding that a
     4
       As the Court of Appeals subsequently observed, a “pretrial election” serves
“a fundamentally different purpose,” State v. Payne, 

, 

 (2019), from an election in the jury concurrence context.
Cite as 

 (2021)                                 779

demurrer should have been granted because the indictment
failed provide sufficient notice of the state’s theory of the
case, but it distinguished Sanders on the merits, without
suggesting that Sanders had granted an improper form of
relief. See Hale, 

 n 6. And, as the Court of
Appeals noted in Antoine I, Hale “did not explain why, under
the statutory scheme concerning demurrers, if a defendant
establishes that an indictment fails to provide sufficient
notice, the defendant is not entitled to allowance and to the
remedy prescribed by the legislature through ORS 135.670:
dismissal of the indictment, with possible leave to refile.”

 n 7. In the absence of such an explanation,
or any other express statement that Hale had eliminated a
previously appropriate mechanism for challenging a lack of
adequate pretrial notice, it is difficult to conclude that such
a reading of Hale was so obvious that it would have occurred
to any reasonable attorney.

         Moreover, Hale was decided in 2003, and the proceedings in petitioner’s case occurred in 2010 and 2011.
By that time, the Court of Appeals had considered pretrial
notice issues raised through a demurrer in at least three
decisions issued after Hale, including State v. Duffy, 

, 

 (2007), which petitioner’s trial counsel cited in the hearing on the demurrer. See also State
v. Molver, 

, 

, rev den, 

 (2010); State v. Magana, 

, 

, rev den, 

 (2007). Although those cases
were decided against the defendants on the merits, none of
those decisions suggested that a demurrer was an improper
mechanism for challenging the adequacy of pretrial notice.
Trial counsel would have had little reason to expect the
Court of Appeals, notwithstanding several recent decisions to the contrary, to hold that Hale required a different
approach.

         We also observe that neither the prosecutor nor
the trial court read Hale in the manner that the Court of
Appeals did in Antoine I. Petitioner faults counsel for raising the notice issue in a demurrer without arguing “that
Hale was distinguishable or wrongly decided.” But counsel
was not confronted with an argument that he had raised
780                                                       Antoine v. Taylor

the issue in an inappropriate manner, and the trial court
addressed, and rejected, his notice argument on the merits,
holding that petitioner was not entitled to additional pre-trial notice. Hale was not cited at all in the trial court.5 Trial
counsel did not fail to respond to an argument against his
position and he was not alone in failing to detect an ambiguity in the law.
         In short, petitioner has identified no decision available to trial counsel that clearly held that a demurrer was
not an appropriate mechanism to raise a statutory or constitutional challenge to the sufficiency of pretrial notice in
the charging instrument or even that would have indicated
that a motion for a pretrial election was a productive alternative mechanism through which to raise the issue. Petitioner
has not presented any evidence that his reading of Hale was
widely shared or even that any other attorney had read Hale
in that manner prior to Antoine I. And petitioner’s theory of
deficient performance fails to account for the longstanding
body of authority holding that a demurrer is an appropriate
way to raise a challenge under ORS 132.550(7) or the notice
clause of Article I, section 11. Much as in Burdge, when we
take into account the information available to trial counsel
at the time, we cannot conclude “that any lawyer exercising
reasonable professional skill and judgment necessarily would
have seen,” 

, the arguable ambiguity in the
case law subsequently identified by the Court of Appeals in
Antoine I. We conclude that petitioner has not shown that
trial counsel failed to exercise reasonable professional judgment in raising the issue of pretrial notice primarily through
a demurrer, rather than through a motion for a pretrial election. He therefore is not entitled to post-conviction relief on
his claim of inadequate assistance of counsel.
        The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.

     5
       In the Court of Appeals, the state did cite Hale, but it did not argue that
Hale made a demurrer an inappropriate mechanism to challenge an indictment
for failing to provide adequate pretrial notice, and it did not argue that petitioner should have sought a pretrial election instead. Antoine I’s reading of Hale
appears to have originated with the Court of Appeals, rather than with either of
the parties.
Cite as 

 (2021)                                                     781

           DUNCAN, J., concurring.
         I concur in the majority’s opinion. I write separately to point out how the lack of clarity in the case law has
affected this post-conviction case and the underlying criminal case. As the majority recounts, in the underlying criminal case, the state charged petitioner by grand jury indictment with four counts of sodomy, four counts of first-degree
sexual abuse, and one count of furnishing sexually explicit
material. The indictment did not specify the incidents that
the counts were based on. The counts simply used the statutory definitions of the crimes and alleged that petitioner had
committed the crimes during a two-year period. As a result,
the four sodomy counts were identical to each other and the
four first-degree sexual abuse counts were identical to each
other. The discovery that the state provided petitioner did
not remedy the lack of clarity in the indictment; instead, it
compounded it because it showed that the alleged victim had
reported a greater number of criminal acts than charged in
the indictment. Consequently, as the state acknowledged,
any count in the indictment would cover multiple criminal
acts in the discovery.
         Because of the lack of clarity regarding the bases
for the counts, petitioner’s defense counsel demurred to the
indictment, contending, among other things, that, even when
considered in connection with the discovery, the indictment
was not sufficiently definite and certain as required by ORS
132.550(7),1 and did not provide adequate notice as required
by Article I, section 11, of the Oregon Constitution2 and the
Sixth Amendment to the United States Constitution.3 The
state did not dispute that the indictment failed to provide
petitioner notice of what incidents the counts were based on.

     1
       ORS 132.550(7) provides that an indictment must contain a “statement of
the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to
know what is intended.”
     2
       Article I, section 11, of the Oregon Constitution provides, in relevant part,
that, in all criminal prosecutions, the accused shall have the right “to demand
the nature and cause of the accusation against him.”
     3
       The Sixth Amendment to the United States Constitution further provides
that the accused shall have the right “to be informed of the nature and cause of
the accusation.”
782                                           Antoine v. Taylor

Instead, the state argued that it was not required to, and
did not intend to, decide what incidents to base each count
on until after it presented its case. The trial court agreed
with the state and overruled the demurrer.
         Petitioner’s defense counsel continued to raise the
issue of lack of notice, and the state continued to assert
that it did not have to provide notice of what each count was
based on until after it presented its evidence. The state also
informed the trial court that it had not asked the grand
jury to base the counts on particular incidents. The state
told the court, “[W]e haven’t been tied to anything yet. So I
don’t know right now what Count 1 will relate to. I’ll elect at
the end of my case and the same with Counts 2 through 9.”
The trial court agreed with that approach. At trial, the state
presented evidence of a greater number of criminal acts
than alleged in the indictment and, after it presented its
case, it made its election.
        Petitioner was convicted of all counts. He appealed,
assigning error to the trial court’s overruling of his demurrer, among other rulings.
         The Court of Appeals agreed with petitioner’s argument “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.” State v.
Antoine, 

, 

, rev den, 

(2015). The court explained that, although an indictment is
usually sufficient if it alleges a crime in the words of the
statute defining the crime, that is not the case when, “for
example, ‘discovery would not aid the defendant because of
the vast number of crimes from which the state could select
in charging the defendant.’ ” 

 (quoting State v. Cooper, 

, 

 (1986)). The court concluded:
   “[T]his case falls within the exception. This case involves
   multiple, separately identifiable criminal acts, but the
   indictment tracks the wording of the criminal statutes
   without differentiating separate criminal acts. From discovery, [petitioner] learned that the victim had described
   more criminal acts than were charged in the indictment,
   and the state elected the specific criminal acts that it
   was prosecuting only after the close of its case-in-chief.
Cite as 

 (2021)                                     783

   As a result, the state’s charging method effectively allowed
   the state to adduce evidence of multiple criminal acts in
   each count of the indictment, without [petitioner] knowing
   which of the acts would be specified and argued to the jury
   for convictions. Such a charging process failed to provide
   [petitioner] with proper notice of the charges before trial.”

 (emphasis added). The court further explained
that such a lack of notice is prejudicial because “the state’s
method of charging, combined with a late election, allows
the state to present evidence of a defendant’s multiple bad
acts and then to select, mid-trial, which of those will be
considered as a charge for the jury to decide.” 

.
“That approach,” the court continued, “undermines efforts
by Oregon courts to prevent ‘other acts’ evidence from being
introduced in contravention of the principle in OEC 404(3)
that such evidence ‘is not admissible to prove the character
of a person in order to show that the person acted in conformity therewith.’ ” 

.
         Nevertheless, relying on this court’s decision in
State v. Hale, 

, 

 (2003), cert den,

, 

, 

 (2004), the
Court of Appeals affirmed the trial court’s overruling of the
demurrer. Antoine, 

. In Hale, the defendant demurred to an indictment on the ground that it was
not sufficiently definite and certain. This court agreed that
the indictment did not provide the defendant notice of the
incident on which an allegation was based, but this court
held that the trial court was not required to grant the defendant’s demurrer because the defendant “had other avenues
available to him for acquiring” the particularized information he sought, “such as later moving the court to require
the state to elect a specific incident … or requesting special jury instructions that clarify the matter.” Hale, 

. Applying Hale, the Court of Appeals concluded
that, although petitioner’s defense counsel had demurred to
the indictment and the indictment had not provided adequate notice, the trial court had not erred in overruling the
demurrer insofar as it was based on lack of notice because
“[petitioner] had another avenue to obtain adequate notice
of the charges against him.” Antoine, 

.
Specifically, “as in Hale, [petitioner] could have moved to
784                                                         Antoine v. Taylor

discover the state’s election of the specific criminal acts that
the state would prosecute at trial, in time for [petitioner] to
tailor his defense to those specific incidents.” Id.4
         Not surprisingly, petitioner subsequently initiated
this post-conviction relief case, alleging that his defense
counsel had provided inadequate representation because he
had failed to move for a pretrial election. The post-conviction
court agreed and granted petitioner relief.
         But the superintendent appealed, the Court of
Appeals reversed, and this court now affirms that reversal.
We do so based on our conclusion that petitioner failed to
prove that his defense counsel should have moved for a pre-trial election. In support of that conclusion, we explain that
statutes relating to pretrial notice suggest “that a challenge
to an indictment based on ORS 132.550(7) not only can but
must be raised by demurrer.” 368 Or at 772. And, we further explain that, “[p]utting Hale to one side, the appellate
case law that would have been available to petitioner’s trial
counsel would have supported that interpretation of the
statutes.” Id. at 773 (gathering cases from this court and the
Court of Appeals). Similarly, we explain that the appellate
case law available to petitioner’s trial counsel established
that “the Article I, section 11, right to notice must be raised
in a demurrer.” Id. at 774.
        Thus, what has happened in the underlying criminal case and this post-conviction case is this: the state
    4
      The Court of Appeals noted that, although Hale suggested that the defendant in that case could have obtained the notice he sought by requesting special
jury instructions, such an action would be too late to provide the notice that
petitioner needed in his criminal case. In Hale, it appears that the defendant
sought notice of the basis of an allegation in order to ensure that jurors concurred
on that basis. Hale, 

; Antoine, 368 Or at 775. But, in his criminal
case, petitioner sought the notice in order to prepare and present his defense. As
the Court of Appeals explained in the appeal in that case, allowing the state to
identify the basis of an allegation at the jury instruction stage does not provide a
defendant with sufficient notice to prepare and present his defense:
         “We note that the court’s suggestion in Hale of ‘later’ actions could imply
    that a defendant can take action at trial, but elucidation of the state’s precise
    theory at trial does not cure the problem of a lack of pre-trial notice, given
    that such notice is essential to pre-trial investigation, trial preparation, and
    litigation of evidentiary issues. Thus, we do not view Hale as impeding a
    defendant from filing a motion for the state’s election early in the case.”
Antoine, 

 n 8 (internal citation omitted).
Cite as 

 (2021)                                                    785

prosecuted petitioner based on an indictment that did not
provide notice of what incidents the counts were based on;
petitioner’s defense counsel demurred to the indictment, but
the state argued against the demurrer and the trial court
overruled it; the Court of Appeals recognized the merits of
petitioner’s claim that he had been denied adequate notice,
but held that the trial court did not err in overruling defense
counsel’s demurrer because defense counsel could have
moved for a pretrial election; and now we hold that defense
counsel would not necessarily have known to move for a pre-trial election because statutes and case law indicate that
claims like the one he was making should be made through
a demurrer—which, of course, is one of the several ways in
which defense counsel made the claim.5
         This case illustrates the unfortunate lack of clarity
in the law regarding what procedural mechanisms a criminal defendant can utilize to obtain adequate notice of the
charges against him. As a result of that lack of clarity, petitioner was tried without such notice and has been unable
to obtain relief either through his direct appeal or his post-conviction claim.
         It bears emphasizing that, although it is unclear
what steps a criminal defendant should take when the state
fails to provide notice of the charges against him sufficient
to enable him to prepare and present his defense, it is clear
that a defendant has a right to such notice. That right should
have been apparent from the statutory and constitutional
provisions that petitioner’s defense counsel invoked in the
underlying criminal case, but to the extent that it was not,
the Court of Appeals set it out expressly in its decision in
that case when it concluded that the state had failed to provide petitioner with adequate notice. Antoine, 

. Thus, it is now clear that, under Oregon law, a defendant
has a right to notice of the charges against him sufficient

    5
      As the majority recounts, petitioner’s defense counsel took several steps to
remedy the lack of clarity in the indictment. In addition to filing the demurrer,
defense counsel also filed motions seeking access to the grand jury notes on two
separate occasions and, at trial, filed a motion for a judgment of acquittal on all
counts and objected to the language in the jury instructions that related to the
state’s election. 368 Or at 763-65. The state opposed those motions, and the trial
court denied them.
786                                         Antoine v. Taylor

to prepare and present his defense and, in cases like this,
that right includes the right to pretrial notice of the incidents on which charges are based. As the Court of Appeals
observed, such notice is “essential to pre-trial investigation, trial preparation, and litigation of evidentiary issues.”
Id. at 79 n 8. Consequently, in future cases, there should be
no question that a defendant has a right to such notice, that
the state must not violate that right, and that a trial court
must enforce it.
         When an indictment, read in the context of information provided in discovery, fails to provide notice sufficient for defense counsel to prepare and present his defense,
defense counsel should take steps to obtain that notice, as
petitioner’s defense counsel did in the underlying criminal
case. Although case law is unclear regarding what specific
steps defense counsel should take, the appellate decisions in
the underlying criminal case and this post-conviction case
suggest that those steps should include demurring to the
indictment and, as a backup, moving for a pretrial election.
         But in the end, the title of defense counsel’s filing
or motion should not be dispositive when defense counsel
alerts the trial court that the state has failed to provide
sufficient notice for him to prepare and present a defense.
When defense counsel does that, the trial court must compel
the state to provide that notice.