¶19 (concurring) — While I agree with the majority’s holding today in large part, I write separately to outline a procedure I believe more completely resolves the issue of divisibility. Because we lack significant information about Anthony Bradley’s plea agreement, the majority assumes too much in finding indivisibility in light of our rule set out in State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003). Instead of deciding Bradley’s personal restraint petition (PRP) on the merits, I would order additional fact finding on remand and leave to the trial court the decision of whether to allow Bradley to withdraw both pleas consistent with the principles outlined in the majority opinion.
¶20 I agree with the majority that the divisibility inquiry is necessarily fact driven, but I disagree that we have enough facts on the record to find indivisibility. This court does not concern itself with unexpressed subjective intent, but does look to objective manifestations of intent to determine whether the parties (defendant and State) to the contract (plea agreement) intended the pleas to be indivisible. Id. A court “must treat a plea agreement as indivisible when pleas to multiple counts or charges were made at the *945same time, described in one document, and accepted in a single proceeding.” Id. Today, the majority acknowledges that while Bradley’s crimes did not take place at the same time, nor were they described in one document, it nevertheless finds indivisibility under Turley. Majority at 942-43.
¶21 We borrowed our rule for indivisibility of pleas from contract law, Turley, 149 Wn.2d at 400, and we should be wary of expanding the rule beyond its current boundaries. The majority’s opinion, though it recognizes the bounds of the rule, treats the elements of Turley as factors in a nonexclusive list of many that may exist to demonstrate intent. I would have this court adhere to the elements as established in Turley rather than stretch the rule in this way to fit a set of largely inferred facts.
¶22 In Turley, the court concluded that an evidentiary hearing was not necessary to determine intent because the record contained sufficient objective manifestations of intent. Id. The court held that “a trial court must treat a plea agreement as indivisible when pleas to multiple counts or charges were made at the same time, described in one document, and accepted in a single proceeding.” Id. Today’s holding puts Turley in a precarious position as its holding has changed from a clear, succinct rule to an amorphous, factor-laden test potentially difficult for lower courts to interpret.
¶23 For example, the majority proceeds to infer the concurrence of pleas element despite the absence of a single document describing the pleas because of the timing of Bradley’s plea amendment. Majority at 942-43. As logical as that inference might be, I think this court does not need to make such an inference. Rather, because of the lack of the colloquy between the sentencing court and Bradley, id. at 942, and the pro forma nature of the cross-references contained in the plea agreements, id. at 942-43,1 find any manifestations of intent ambiguous. Thus, without more definition, I do not read the record as demonstrative of indivisible pleas.
*946¶24 Instead of deciding Bradley’s case on the merits, I would transfer his PRP back to the superior court for a reference hearing to gather the necessary facts. This court has promulgated rules that provide a method to ascertain the necessary facts. RAP 16.11(b) sets out a procedure for appellate courts to resolve fact questions in review of PRPs. If the court lacks necessary facts to make a decision on the merits, it can transfer the petition to the superior court for a reference hearing. RAP 16.11(b). RAP 16.13 details that an appellate court can receive the record back from the superior court and make a decision on the merits. However, RAP 16.11(a) allows for a full delegation to the superior court for a decision on the merits. While the rules describe these procedures in terms of the Court of Appeals, this court certainly may employ these procedures in a PRP that the Court of Appeals has transferred to us pursuant to RCW 2.06.030.
¶25 The majority’s interpretation of the facts surrounding Bradley’s plea agreement is most likely accurate. However, we should be wary of this sort of “most likely” result when a method exists for extracting the necessary facts. I would transfer this case back to the superior court for a reference hearing on Bradley’s plea agreement.
Sanders, J., concurs with Owens, J.