(dissenting) — Peter T. Littlefair, a Canadian citizen, appeals the trial court’s order denying his 1999 motion to vacate his judgment and sentence and withdraw his 1996 guilty plea. I would hold that even though Littlefair was not advised of deportation possibilities when he entered his plea, his motion to vacate was untimely because it was not brought within one year after judgment. The parties did not raise equitable tolling, and I would hold it to be inapplicable without further briefing and argument. And I would affirm our holding in State v. Holley, 75 Wn. App. 191, 876 P.2d 973 (1994), that the failure to advise a defendant of possible deportation consequences is a collateral consequence of a conviction. Thus, because the trial court made specific findings that were not challenged, that Littlefair’s attorneys did not affirmatively misrepresent to him deportation consequences, the error does not rise to constitutional harm or ineffective assistance of counsel. I would affirm the conviction.
In March 1996, the State charged Peter T. Littlefair with both manufacturing marijuana and possession of marijuana with intent to deliver. Littlefair testified that he told the Skamania County Jail personnel that he was a Canadian citizen.
*770In October 1996, Littlefair pleaded guilty to manufacturing marijuana. On the day of the plea hearing, Littlefair’s attorney provided him the plea agreement, which included a standard statement of defendant on plea of guilty form. Each separate paragraph of the statement was alphabetically denominated. Littlefair’s attorney crossed out with three “x”s paragraphs that did not pertain to him. Incorrectly crossed out with those three “x”s was the deportation warning in paragraph “n.” While paragraph “n” informed Littlefair that, if he was not a United States citizen, a guilty plea is grounds for deportation; because it was crossed out, Littlefair testified that he did not read it when he reviewed his plea agreement.
During the plea hearing, the trial court inquired whether Littlefair’s attorney had gone over the agreement with him and whether he understood it. Littlefair responded that he did and admitted he committed the crime. The court accepted Littlefair’s guilty plea and sentenced him to two days confinement, 240 hours of community service work, 24 months supervision and about $3,200 in costs and fines.
In November 1998, the Immigration and Naturalization Service informed Littlefair that it intended to hold an administrative hearing to determine if it should deport him for committing a felony. In response, in May 1999, Littlefair filed a motion to vacate his 1996 judgment and sentence. In the motion, Littlefair claimed that he would not have pleaded guilty to the manufacture of marijuana charge if he had known that it could result in his deportation. The court, however, denied his motion to vacate and his subsequent motion for reconsideration.
After oral argument on appeal, we sent the matter back to the trial court for an evidentiary hearing under RAP 9.11. The trial court made the following pertinent findings:
• Littlefair did not tell his attorney or anyone else involved in the case that he was not a U.S. citizen, except a booking officer;
*771• Littlefair did not receive any advice from either of his attorneys regarding deportation consequences. They did not question his citizenship because he was not a person of color and did not have a Hispanic surname;
• Littlefair was not told anything about why paragraph “n” was crossed out;
• Littlefair was not affirmatively misinformed about the deportation consequences of pleading guilty;
• Littlefair’s attorneys neglected to inform him of the deportation consequences.
I. CrR 7.8(b)
The applicable superior court criminal rule to vacate a criminal judgment is CrR 7.8(b), which provides as follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.6;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and .140. Amotion under section (b) does not affect the finality of the judgment or suspend its operation.
The trial court reviewed Littlefair’s motion to vacate under CrR 7.8(b)(1). Littlefair contends that review should *772have been under CrR 7.8(b)(5), and not CrR 7.8(b)(1). In any case, we review a CrR 7.8(b) motion for an abuse of discretion. State v. Gomez-Florencio, 88 Wn. App. 254, 258, 945 P.2d 228 (1997), review denied, 134 Wn.2d 1026 (1998). The court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966).
It is undisputed that the crossed out deportation warning in Littlefair’s statement on plea of guilty was a mistake under CrR 7.8(b)(1). Littlefair’s argument that the mistake was substantial enough to fall under CrR 7.8(b)(5), however, is unpersuasive.
Relief under CrR 7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the rule. State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992); State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997); State v. Cortez, 73 Wn. App. 838, 841-42, 871 P.2d 660 (1994). “[E]xtraordinary circumstances must relate to fundamental, substantial irregularities in the court’s proceedings or to irregularities extraneous to the court’s action.” Olivera-Avila, 89 Wn. App. at 319 (citing State v. Aguirre, 73 Wn. App. 682, 688, 871 P.2d 616, review denied, 124 Wn.2d 1028 (1994)). A conviction should be vacated only in those limited circumstances, “where the interests of justice most urgently require.” State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989). CrR 7.8(b)(5) “does not apply when the circumstances allegedly justifying the relief existed at the time the judgment was entered.” Gomez-Florencio, 88 Wn. App. at 259.
In Gomez-Florencio, 88 Wn. App. 254, the defendant contended that the trial court erred in not highlighting for him the deportation warning in his plea agreement. The court held that CrR 7.8(b)(5) did not apply because the prior convictions, which the State failed to discover, existed at the time of the defendant’s original sentencing. The court also ruled that although the defendant alleged it was the State’s neglect, and the State alleged it was the defendant’s *773fraud that prevented discovery of the defendant’s prior convictions, other areas of the rule covered both reasons. Similar to the defendant’s prior convictions in Gomez-Florencio, Littlefair’s Canadian citizenship existed at the time he pleaded guilty, and he told neither his attorneys nor the court that he was a Canadian citizen when he pleaded guilty. Because Littlefair’s citizenship existed at the time he pleaded guilty and CrR 7.8(b)(1) covers Littlefair’s situation as a mistake or neglect, CrR 7.8(b)(5) does not apply. See Gomez-Florencio, 88 Wn. App. at 259 (relief under CrR 7.8(b)(5) limited to extraordinary circumstances not covered by any other section of the rule). Thus, the court did not abuse its discretion in finding relief under CrR 7.8(5) unavailable to Littlefair.
Littlefair also contends that the court erred in ruling that his CrR 7.8(b) motion was untimely. He argues that RCW 10.40.20065 sets forth no time limit for a defendant to withdraw a guilty plea. His argument fails. Under Washington case law, RCW 10.40.200 allows the defendant to vacate judgment and withdraw a guilty plea, but only within one year after judgment is filed. The one-year time limitation for a CrR 7.8(b)(1) motion is plainly set forth in CrR 7.8(b). See also RCW 10.73.090 (collateral attack on judgment may not be filed more than one year after final judgment). Thus, the court did not err.
II. Equitable Tolling
It was abundantly clear that Littlefair did not raise the doctrine of equitable tolling at the trial court or on his appeal. Littlefair relied on CrR 7.8(b)(5), which did not have the one-year limitation. The majority applies the doctrine of *774equitable tolling without briefing or argument, at either the trial or appellate level, by either party. The majority may be correct that equitable tolling applies, but the better appellate practice would be to at least allow the parties the opportunity to address the principle rather than just apply it. After all, in this case we did send the matter back for fact finding regarding Littlefair’s attorney’s actions; we could just have easily asked for supplemental briefing on this important doctrine that the majority holds is decisive.
In any event, I would not apply the doctrine of equitable tolling to the error Littlefair’s attorney committed in this case. The cases that have permitted its use, as noted by the majority, have allowed it only sparingly and have found circumstances for its use where there has been bad faith, deception, or false assurances on one side and due diligence on the part of the other. See In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 430, 993 P.2d 296 (2000). In this case, when the trial court took testimony regarding Littlefair’s attorney’s actions, it did not find bad faith, deception, or false assurances, it found neglect. Without a basis of bad faith, deception, or false assurances (within this last category, I would permit “affirmative misrepresentations” to form a basis for application of the doctrine), I would not apply equitable tolling as to the error Littlefair’s attorney committed. Also, because the error does not rise to constitutional significance, it is not ineffective assistance under Holley, 75 Wn. App. at 198, the neglect should not trigger equitable tolling.
The majority also declines to address any impact of our referral back to the trial court for an evidentiary fact-finding hearing. The majority states, “His [Littlefair’s] lack of knowledge was not due to any fault or omission on his part.” Majority opinion at 762. This is not supported by any evidence or by any of the facts adduced at the fact-finding hearing (there is no duty under the statute for the alien to disclose his status in this country at the time of plea, RCW 10.40.200(1)). The majority also relies on no fact for the proposition that Littlefair should not have known that his status might be in jeopardy with the commission of a felony.
*775Likewise, the majority does not address whether Littlefair’s testimony at the August 26, 1996 suppression hearing, that he was born in Canada and raised in New Jersey, is sufficient to satisfy the due diligence consideration of equitable tolling and whether this testimony should have alerted the court to inquire into Littlefair’s citizenship status when he pleaded guilty on October 17, 1996. It may be that because Littlefair informed the trial court at his suppression hearing that he was born in Canada and raised in New Jersey, he acted with due diligence, and the court, by not inquiring into Littlefair’s citizenship and determining whether he was advised of possible deportation consequences and not noting that the deportation warning had been stricken from Littlefair’s plea agreement, created a false assurance to trigger equitable tolling. Littlefair’s testimony at the suppression hearing, however, was not as to his current citizenship; it was only as to his past residence. He did not testify concerning his parentage, i.e., if he had mixed nationality, or if he had dual citizenship until any certain age. I would think that the remaining question is whether the trial court should have been alerted at this stage to have inquired some two months later as to Littlefair’s citizenship. Given these unanswered questions, I would not decide this issue under equitable tolling without briefing and argument.
III. Direct or Collateral Consequence — Due Process
Littlefair contends that because he was not sufficiently warned about deportation consequences at the time he entered his guilty plea, his guilty plea was involuntary. His contention fails.
Due process requires that a guilty plea be knowing, intelligent, and voluntary. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); In re Pers. Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988). Due process also requires that a guilty plea be made with knowledge of its direct consequences. Peters, 50 Wn. App. at 704; Holley, 75 *776Wn. App. at 196. The defendant need not, however, be advised of all possible collateral consequences of his plea. State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980). “The distinction between direct and collateral consequences of a plea ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” Barton, 93 Wn.2d at 305 (quoting Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973)).
It is well settled that deportation is a collateral consequence of a guilty plea. State v. Jamison, 105 Wn. App. 572, 591-92, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001); In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999); Holley, 75 Wn. App. at 196; State v. Ward, 123 Wn.2d 488, 513, 869 P.2d 1062 (1994); Peters, 50 Wn. App. at 704. “Deportation with no possibility of reentry into the United States, even if an absolute certainty following conviction of an aggravated felony as defined by federal law, remains collateral to the criminal prosecution because it is ‘not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility.’ ” Jamison, 105 Wn. App. at 593 (quoting State v. Martinez-Lazo, 100 Wn. App. 869, 877, 999 P.2d 1275, review denied, 142 Wn.2d 1003 (2000)). Thus, the fact that a defendant entered a guilty plea, unaware of the potential deportation consequences of conviction, does not, by itself, establish a due process violation. Holley, 75 Wn. App. at 196. That a defendant may subjectively feel that deportation and permanent exclusion is a harsh punishment does not alter the analysis. Jamison, 105 Wn. App. at 593.
Although Littlefair was not warned as required under RCW 10.40.200, because deportation is a collateral consequence of a guilty plea, the court did not err in denying Littlefair’s motion to vacate judgment and withdraw his guilty plea.66 See Holley, 75 Wn. App. at 198 (RCW *77710.40.200 does not create a constitutional right to be advised of consequences, therefore, the failure to comply with the statute does not create a constitutional harm).
IV. Ineffective Assistance of Counsel
Finally, Littlefair contends that because his attorney did not inform him of deportation consequences, he received ineffective assistance of counsel. As we noted in Holley, trial counsel has an obligation to aid a defendant “ ‘in evaluating the evidence against him and in discussing the possible direct consequences of a guilty plea.’ ” Holley, 75 Wn. App. at 197 (quoting State v. Malik, 37 Wn. App. 414, 417, 680 P.2d 770, review denied, 102 Wn.2d 1023 (1984)). A defendant, however, need not be advised of the possibility of deportation because a deportation proceeding that occurs subsequent to the entry of a guilty plea is merely a collateral consequence of that plea. Yim, 139 Wn.2d at 588.
But, as we pointed out in Holley, “erroneous advice about a matter collateral to the conviction can constitute constitutionally deficient performance.” Holley, 75 Wn. App. at 198 (citing State v. Stowe, 71 Wn. App. 182, 858 P.2d 267 (1993)). Littlefair asserted a constitutional error, that being ineffective assistance of counsel, and hoped to avoid any time limitation upon his claim.67 We sent the matter back for an evidentiary hearing to determine whether his attorneys affirmatively misinformed him. The findings made at the evidentiary hearing dispose of this claim. They reveal that Littlefair never alerted his attorneys to his citizenship, that his attorneys never advised him regarding possible deportation, and that his attorneys did not affirmatively misrepresent to him possible deportation consequences.
*778Thus, Littlefair has failed to show that he was deprived of his constitutional right to effective assistance of counsel.
I would affirm the conviction.
RCW 10.40.200(2) states in pertinent part as follows:
If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty.
RCW 10.40.200 requires that a defendant, who is not a United States citizen, be warned before accepting a guilty plea of the potential conviction consequences *777that arise because they are not a United States citizen. RCW 10.40.200, however, does not require a defendant to disclose his or her legal status to the court. To ensure meeting the warning requirement of RCW 10.40.200, the court should probably always advise a defendant of the potential conviction consequences that arise if they are not a United States citizen, that being deportation, exclusion from admission to the United States, or denial of naturalization.
I would not rule upon a time limit for raising a violation of effective assistance of counsel under the U.S. Const, amend. VI because it is not before us.