(dissenting) — This conviction on plea of guilty must be vacated because the charging document alleged the offense took place some time during a period both before and after the effective date of the criminal statute. State v. Aho, 137 Wn.2d 736, 744, 975 P.2d 512 (1999).
Now is not the time to find the facts nor weigh the evidence, but rather to consider whether the charge to which Mark Alan Crabtree pleaded guilty was a justiciable crime when the conduct allegedly occurred. Because the fact finder may have found Crabtree guilty of the crime *590based on acts occurring prior to its effective date, July 1, 1988, State v. Aho represents an intervening change in the law, thus establishing good cause to grant Crabtree’s personal restraint petition.
Aho considered a situation where, “in direct violation of [the] clear legislative mandate both the state and defense counsel permitted [the] matter to go forward despite the fact that the charging period, set forth in the jury instructions, included a substantial period of time before July 1988.” Aho, 137 Wn.2d at 743 (emphasis added). Interpreting the same section of Washington law at issue here, Aho vacated convictions because of the possibility they were based on acts occurring before the statute’s effective date, depriving Aho of his liberty absent that process which is due. Id.
I. Crabtree’s Guilty Plea Supports, Rather Than Distinguishes, the Application of State v. Aho
The majority admits Crabtree’s due process rights “would have been violated if the offenses for which the community placement was imposed had occurred before July 1, 1988,” but attempts to circumvent its own rule on the basis of the charging information and guilty plea factual averments. Majority at 585. But far from establishing a factual distinction between Aho and the present case, the substance of the information and facts upon which this guilty plea was based embodies the identical factual predicate upon which Aho was decided. See Aho, 137 Wn.2d at 741.
Admitting the charging information’s deficiency, the majority bases its claim Crabtree was not prejudiced by relying on an equivalent statement on plea of guilt wherein “he admitted he committed rape of a child and child molestation between June 1,1988 and August 31,1988.” Majority at 585 (emphasis added). According to the majority “[t]his constituted an admission of criminal acts between July 1 and August 31.” Id. Of course it didn’t, it admitted acts between June 1 and August 31.
*591We held in Aho the defendant may have been convicted of an offense occurring before July 1, 1988 specifically because “the charging period, set forth in the jury instructions, included a substantial period of time before July 1998.” Aho, 137 Wn.2d at 743. The majority is simply wrong when it contends the relevant documents prove “the offenses occurred within the statutory period,” or show “Crabtree committed sexual offenses after July 1, 1988.” Majority at 585, 586.
To the contrary, all of the documents upon which the conviction was based, e.g., the charging information, factual statement by the defendant, guilty plea, and judgment and sentence, suffer from exactly the same infirmity as the jury instruction at issue in Aho by including a substantial period of time before the effective date of the statute. See Aho, 137 Wn.2d at 743. None of these documents offers any clue as to whether the crimes were committed a month before the effective date of the statute or a month after.
The majority’s opinion is particularly disturbing in light of the policy behind CrR 4.2(d) which “protects defendants who are in the position of voluntarily pleading guilty with an understanding of the nature of the charge, but who do not realize that the conduct does not actually fall within the charge.” Majority at 586.
II. The Factual Allegations Relied Upon by the Majority Are Insufficient to Meet the Aho Standard
Crabtree pleaded guilty to the averments in the information, by repeating these same averments in his statement on plea of guilty.8 “Challenges to the sufficiency of the *592information are of constitutional magnitude if they concern the essential elements of the crime charged,” and an information is “constitutionally deficient if the defendant shows he was prejudiced by imprecise charging language.” State v. Moavenzadeh, 135 Wn.2d 359, 363 n.2, 956 P.2d 1097 (1998) (citing State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185 (1995)).
The majority claims Crabtree “admitted the offenses occurred after the statute came into effect,” implying the trial court was aware of the alleged admission in light of the effective date of the statute, and discounting the effect of the information and formal statement of facts supporting that plea. Majority at 587. Notwithstanding, the trial court included the month of June in its findings of fact as well as the judgment and sentence for counts II and IV, all of which include the extra-statutory month. That should end the irrelevant inquiry about what the trial court was subjectively thinking.
The majority cites State v. Zumwalt, 79 Wn. App. 124, 901 P.2d 319 (1995) to explain the protections offered by CrR 4.2(d). Majority at 585. However, Zumwalt also imposes the additional requirement that “the factual basis [for the trial court’s determination] must be developed on the record at the plea hearing.” Zumwalt, 79 Wn. App. at 130 (citing State v. Osborne, 102 Wn.2d 87, 95, 684 P.2d 683 (1984)) (emphasis added). Whether the trial court considered and rejected the factual assertions or never considered them at all, by including the extra month the court expressly allowed for the prospect that the conduct could have occurred during the extended period. There can be no certainty “the judge, before accepting the guilty plea . . . determined] that the defendant’s admitted conduct constituted] the charged offenses.” Majority at 585. We are in no position to rewrite the same decision we are charged to review.
III. Ineffective Assistance of Counsel
Crabtree’s petition demonstrates ineffective assistance of counsel:
*593[T]here is no conceivable legitimate tactic where the only possible effect of deficient performance was to allow the possibility of a conviction of a crime under a statute which did not exist and could not be applied during part of the charging period. Prejudice here is obvious.
Aho, 137 Wn.2d at 745-46 (emphasis added). There can be no dispute the statute cannot be lawfully applied to the entire period charged. Thus, even the possibility of a wrongful conviction illustrates the same “obvious” prejudice we recognized in Aho.
I dissent.
Alexander, J., concurs with Sanders, J.
Finding a guilty plea “lacked a sufficient factual basis in the record of the plea hearing,” the Court of Appeals noted “[cjourts and counsel should not accept plea statements that do no more than simply parrot the information. The essential facts underlying the critical elements of the offense must be included. A plea statement providing only the elements of the charge contains conclusions of law, not the underlying facts, and is therefore inadequate.” State v. Zumwalt, 79 Wn. App. 124, 132, 901 P.2d 319 (1995). In this case neither the plea agreement nor the information contained underlying facts sufficient to prove the required elements of the charge.