dissenting.
Basic to the Article I, section 11, guarantee of adequate assistance of counsel is the requirement that counsel inform the defendant concerning the results of a decision to plead guilty or go to trial, and give advice concerning the relative merits of the defenses and other options available to the defendant. Petitioner’s trial attorney did not advise him that his prior diversion could be reinstated. Nor did the attorney discuss the relative risks of going to trial and the reasonable and distinct possibility that the facts in petitioner’s case would result in a not guilty verdict.
*481The majority applies Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968), and concludes that
“there is evidence in the record from which the post-conviction court could have determined that petitioner’s allegations were false.” 121 Or App at 478.
I disagree that the evidence is in the record. The attorney did not remember what he told petitioner or what factual discussions he had had with petitioner regarding the DUII charge. The attorney also did not remember how he evaluated petitioner’s case and did not remember whether he tried to reinstate petitioner’s diversion. The attorney said that he
“tell[s] the defendant this is where we stand. I do it as a matter of course. I don’t remember exactly what was said.”
The attorney had no recollection of the facts of petitioner’s case, beyond petitioner’s .06 breathalyzer result, and could not remember any specifics about his discussion with petitioner except that he told petitioner what would happen if he pleaded guilty. The attorney also stated:
“They (Junction City Municipal Court) wouldn’t let him [petitioner] go without bail because [he] was not from here.”
However, the attorney did not make any statements about whether he tried to get petitioner’s bail reduced or whether he thought that may have been possible. The statements of the attorney do not support a finding that he fully advised petitioner of the merits of his case or of his options. Because there is insufficient evidence to support a finding by the trial court that petitioner was fully advised, this court cannot and should not presume that such a finding was made.
Clearly, defendant was prejudiced by his attorney’s failure to advise him of alternatives to a guilty plea. A defense attorney testified at the post-conviction hearing that reinstatement of diversion was terminated for non-payment of fees, and because defendant was impecunious, the prospects for reinstatement of diversion and the waiver of diversion fees were especially good. Defendant was further prejudiced by his attorney’s failure to explain his chances for success at trial. Four defense attorneys testified that the risks of going to trial were minimal. One attorney testified that he had never seen a DUII conviction where the defendant had a blood alcohol content lower than the level set by statute. Another attorney *482said of defendant’s case: “This is in the top 5% of cases I’d try.”
I would hold that petitioner demonstrated that his trial attorney’s representation fell below an objective standard of reasonableness, and that that failure denied petitioner his right to counsel under Article I, section 11, of the Oregon Constitution. I would also hold that that denial prejudiced petitioner’s defense and renders his conviction void. ORS 138.530(1)(a); Krummacher v. Gierloff, 290 Or 867, 873-74, 627 P2d 458 (1981).
I dissent.