This is true even if the decision was not made from ignorance of the law or a fact." (See People v. Pope, 23 Cal.3d 412, 424, supra; accord State v. Adams, 91 Wn.2d 86; People v. Garcia, 398 Mich. 250; State ex rel. Wine v Bordenkircher, 230 S.E.2d 747 [W Va]; Hussick v. State, 19 Or. App. 915; State v. Anonymous, 34 Conn. Sup. 656.) Adopting the Beasley standard, the Supreme Judicial Court of Massachusetts has stated: "Although most cases involving a claim of ineffective counsel concern counsel's lack of preparation, there may be instances where the judgment of fully informed counsel may be manifestly unreasonable as to be unprotected by the labels of `trial strategy' or `trial tactics.'"
This court, applying the rule of State v. Gratz, supra, has held that two counts of robbery, arising out of the same transaction, "were separate offenses and the sentencing of the defendant on each of them was proper." Hussick v. State of Oregon, 19 Or. App. 915, 921, 529 P.2d 938 (1974), rev den (1975). Here, defendant was convicted of 20 separate offenses and sentencing on each was permissible.
As to the claim of incompetence of counsel, petitioner has the burden of showing not only counsel's incompetence, but also prejudice resulting therefrom. Hussick v. State of Oregon, 19 Or. App. 915, 529 P.2d 938 (1974), Sup Ct review denied (1975); Storms v. Cupp, 13 Or. App. 273, 508 P.2d 450, Sup Ct review denied (1973). Petitioner contends that his decision, after plea bargaining, to plead guilty to a charge of second degree rape was influenced by his counsel's erroneous advice that in a trial for incest evidence of prior acts of incest with the same victim would be admissible.
These courts have applied standards which are similar to those applied in malpractice situations. Moore v. United States, 432 F.2d 730 (3rd Cir.); State v. Anderson, 117 N.J. Super. 507, 285 A.2d 234; Kott v. Green, 303 F.Supp. 821 (N.D. Ohio); United States v. DeCoster, supra; United States v. Garguilo, 324 F.2d 795 (2nd Cir.); State v. Thomas, supra; Hussick v. State, ___ Ore. ___, 529 P.2d 938; and see Finer, Ineffective Assistance of Counsel, 58 Cornell L. Rev. 1077. In Colorado the evolution of the sham — farce rule is demonstrated in the case of People v. White, 182 Colo. 417, 514 P.2d 69. There, the Court expands the rule to encompass the issue of whether counsel's representation was "reasonably likely to render and rendering reasonably effective assistance.