Oregon Supreme Court, November 24, 2021

by: Rankin Johnson • November 27, 2021 • no comments

Summarized by Rankin Johnson, OCDLA

JOINDER, SEVERANCE, AND ELECTION - Timing of election
Importance: 3/5

Trial counsel was not ineffective in failing to demand that the state elect the prosecution theory before trial. Denial of post-conviction relief affirmed.

During trial-court proceedings in 2010, trial counsel demurred and argued that the indictment was too vague to provide double-jeopardy protection. The trial court agreed and ordered the state to elect a prosecution theory at the close of evidence.

On direct appeal, the Court of Appeals held that, although the indictment was vague, defendant's failure to seek an election at the beginning of trial prevented review. The Court of Appeals rejected on the merits defendant's argument that the election was an improper amendment.

In post-conviction court, defendant, now petitioner, argued that trial counsel's failure to seek an earlier election had been based on a misunderstanding of the law. The post-conviction court agreed and granted relief, but the Court of Appeals reversed, reasoning that, under the state of the law at the time of trial, competent counsel would not necessarily have understood that the court should order an earlier election or that a demurrer was not a suitable mechanism to raise the issue.

In affirming the Court of Appeals, the Supreme Court explained that subsequent developments in the law did not establish that counsel was ineffective in failing to anticipate them, but counsel could be ineffective in failing to identify and act on an "obvious" ambiguity in the law.

Duncan, concurring, observed that the criminal defendant was unequivocally entitled to notice regarding the charged offenses, and did not receive it, but the vagueness of the law at the time of trial prevented him from obtaining relief.

Antoine v. Taylor 368 Or 760 (November 24, 2021) (Nelson, Duncan concurring) (Umatilla County, Pratt)