(dissenting) — I concur in the majority's disposition of petitioner Benjamin Malone's personal restraint petition. However, I must dissent from the determination that petitioners Lee, Hemphill, Greene, and Thompson must be denied relief because of our decision in In re Myers, 91 Wn.2d 120, 587 P.2d 532 (1978). The majority holds that because these petitioners did not *367appeal their habitual criminal convictions on the grounds set out in State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980), they are now prevented from asserting those claims. Such an analysis by the majority inappropriately extends Myers' holding in a manner that violates our court rules concerning the procedures for bringing and acting upon personal restraint petitions. I will examine this error after briefly setting out the basis for petitioners' personal restraint petitions, as set forth in Holsworth.
Holsworth concerned the proof available in a habitual criminal proceeding to prove the two prior felony convictions necessary for an individual to be adjudged a habitual criminal. RCW 9.92.090. We held in that case that the defendant can challenge the use of a prior conviction based on a guilty plea to prove his habitual criminal status on the basis that the prior guilty plea was constitutionally defective:
The State has the burden of proving beyond a reasonable doubt that the plea was knowingly made after the defendant was apprised of the nature of the offense and of the consequences of pleading guilty to it, including possible maximum mandatory minimum sentences upon conviction and the constitutional rights to jury trial, to confrontation [of his accusers], and to remain silent, waived by the plea.
State v. Holsworth, supra at 161. In this case, we consider the application of this principle from Holsworth in personal restraint petitions collaterally attacking habitual criminal convictions in which allegedly uninformed guilty pleas were used to prove petitioners' habitual criminal status.
I agree with the majority that Holsworth did not constitute "new law" that would be applied, if at all, retroactively in these petitions. Holsworth overruled no past precedent, and its holding on the issue of the use in habitual criminal proceedings of prior felony convictions based on allegedly unconstitutional guilty pleas was quite clearly foreshadowed by 70 years of cases concerning the disclosures *368required to be given to the criminal defendant who pleads guilty in this state.
Even many years before the United States Supreme Court's decision this state had adopted the principles supporting Boykin's disclosure requirements in considering the validity of guilty pleas.
For example, in State v. Cimini, 53 Wash. 268, 271, 101 P. 891 (1909), this court stated that in order for a plea to be valid it must be entered "without hope or fear, without improper influence or promise, [and] with full knowledge of his legal and constitutional rights and of the consequences of his act..." (Italics ours.) . . .
Affirmation of the defendant's right to attack the use of an allegedly uninformed prior plea in a habitual criminal proceeding is merely another manifestation of this state's continuing and long-standing concern that the defendant suffer the consequences of only freely, unequivocally, knowingly and intelligently made guilty pleas.
State v. Holsworth, supra at 157-58.
Holsworth merely applied this long-established analysis to the use of such a conviction in a subsequent habitual criminal proceeding, concluding that "violation of the defendant's constitutional rights [would be] 'renewed' through use in a habitual criminal proceeding of an uninformed guilty plea which thus violates due process.” State v. Holsworth, supra at 157. That use of an uninformed guilty plea in a habitual criminal proceeding is a violation of the defendant's constitutional rights cannot be doubted. Three valid felony convictions must be proved as requisite elements of the habitual criminal status. State v. Holsworth, supra at 159; State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958). The State's responsibility to prove the elements of a criminal charge beyond a reasonable doubt is a matter of constitutional due process:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable *369doubt of every fact necessary to constitute the crime with which he is charged.
In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970); see also Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975). Holsworth can thus be seen as a case applying clearly established principles of law to the proof of two prior valid felony convictions as the elements of the new habitual criminal charge, an analysis of constitutional magnitude.
The majority errs, however, in concluding that after In re Myers, supra, petitioners cannot now, for the first time in their personal restraint petitions, allege that the prior guilty plea convictions upon which their habitual criminal convictions were based were, in fact, inadequate to prove a prior valid felony conviction under the rule of Holsworth.
In Myers, we refused to consider four claims on which Myers based his petition for release because these "issues . . . could have been raised on appeal but were not, [and] may not be used as grounds for a collateral attack on a criminal judgment." In re Myers, supra at 122. All of the issues not considered by the court in Myers were essentially factual in nature and concerned obvious constitutional claims arising during the prosecution of the crime for which Myers was originally imprisoned. "Myers was represented at trial by a battery of three attorneys and on appeal by a fourth attorney," In re Myers, supra at 122, and all of the alleged errors occurred in a manner that insured that the defendant and his counsel at trial and on appeal would have been aware of their existence. They therefore could not be raised in Myers' personal restraint petition because
[e]ach of those alleged infirmities was apparent either before trial or prior to the end of trial, and each could have been raised on appeal.
In re Myers, supra at 123. Thus, these errors did not provide grounds for relief in the personal restraint petition because it was without doubt that Myers had been aware of the alleged errors and had personally waived the claims on appeal.
*370That is not the case here. Although Holsworth merely applied old law regarding guilty pleas, and thus established no new principle as a legal matter, that does not mean that we should conclusively presume, as the majority does, that these petitioners as a factual matter were aware of this possible violation of their rights through the use of uninformed guilty pleas in their habitual criminal proceedings.
Any nondisclosures of the defendant's rights and of the consequences of his plea that would make a guilty plea inadequate to prove a prior felony conviction in the habitual criminal proceeding which petitioners now collaterally attack occurred long before the guilty pleas were used in the enhancement proceeding. Constitutional infirmities in the guilty pleas, the use of which might have been challenged in the habitual criminal proceeding, would thus, for instance, not be readily apparent to the attorney representing the habitual criminal defendant in the enhancement proceeding. The defendant, untrained in the law, may not have been aware of the need to inform his present attorney that the guilty plea with which the State now seeks to enhance his punishment was uninformed.
In a case such as this, we cannot know from the present record if the Holsworth issue "could have been raised on appeal" of the habitual criminal finding because we cannot know if the defendant was aware as a matter of fact of the claim. We cannot determine without a hearing whether waiver took place, as we could in Myers. A petitioner and his trial attorney may very well have discussed this possibility of attack of the prior guilty pleas, and abandoned it because it was not sound factually. But we cannot determine whether the issue was waived without facts elicited at a hearing on this subject.
Waiver is the "intentional relinquishment or abandonment of a known right or privilege", which can only be accomplished by the defendant himself. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); waiver cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 82 S. Ct. 884 *371(1962). As we stated in the case of State v. Sweet, 90 Wn.2d 282, 286-87, 581 P.2d 579 (1978):
[T]here is no presumption in favor of the waiver of the right to appeal. The State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver . . .
It would seem to us a conscious, intelligent, and willing failure to appeal could be shown to constitute waiver.
These petitioners must be given the opportunity to demonstrate that they were "previously unable to assert [their] rights or [were] unaware of the significance of relevant facts". (Italics mine.) Price v. Johnston, 334 U.S. 266, 291, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). To read Myers so narrowly as to summarily prevent this constitutional challenge would be to abrogate the provisions of RAP 16.4(a) and (c)(2):
[T]he appellate court will grant appropriate relief to a petitioner if the petitioner is under a "restraint" . . .
[And if] the conviction was obtained or the sentence . . . entered in a criminal proceeding . . . was imposed or entered in violation of the Constitution of the United States or the constitution or laws of the State of Washington . . .
(Italics mine.) The majority's analysis unconscionably extends the Myers doctrine by deciding as a matter of law that issues of a constitutional magnitude are conclusively "waived" whenever the defendant's attorney fails to appeal those issues, whether or not the defendant himself concurs or is even aware of this possible violation of his constitutional rights. This is contrary to the letter and spirit of the personal restraint petition and its common law predecessor, the writ of habeas corpus.
The petitioner can raise constitutional objections to his imprisonment at any time. State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979); Scruggs v. Rhay, 70 Wn.2d 755, 425 P.2d 364 (1967). In some circumstances, such as in Myers, *372it may be readily apparent that the petitioner had personally waived those arguments at trial and appeal. But that is not the case here, and these petitions should be transferred to the superior court pursuant to RAP 16.12 for the purpose of determining whether these Holsworth claims were earlier waived by petitioners in their habitual criminal proceedings and, if not, whether under the standards set out in Holsworth their prior convictions based on allegedly uninformed guilty pleas could be used to prove their habitual criminal status.
Finally, I would like to note that despite the majority's failure to acknowledge that we cannot at this stage determine whether these petitioners waived their Holsworth claims in their habitual criminal proceedings, the majority has correctly declined to rely for its conclusion on the prosecutors' claim that these petitioners can challenge the use of prior guilty pleas in their habitual criminal proceedings only by collaterally attacking the guilty pleas themselves. This analysis was quite clearly precluded by the language of Holsworth itself:
[T]he attack in a habitual criminal proceeding on the use of pre-Boykin pleas is neither collateral nor retroactive. The challenge instead is to the present use of an invalid plea in a present criminal sentencing process.
State v. Holsworth, 93 Wn.2d 148, 154, 607 P.2d 845 (1980). At the heart of Holsworth is its determination that the habitual criminal defendant need not collaterally attack a guilty plea so as to set aside the conviction based thereon in order to preclude the use of the prior conviction based on the guilty plea in the enhancement proceeding.
The majority has correctly granted petitioner Malone's petition and transferred the petition to the King County Superior Court for a factual determination of Malone's Holsworth claims. However, the majority erred in summarily dismissing the claims of petitioners Lee, Hemphill, Greene, and Thompson. These petitioners should be entitled to hearings to determine whether they waived their Holsworth claims at trial and on appeal of their habitual *373criminal convictions or whether they may properly be raised now in these personal restraint petitions. I therefore respectfully dissent from the majority's summary dismissal of their petitions.
Utter, C.J., and Ryan, J. Pro Tern., concur with Horowitz, J.
Reconsideration denied March 3, 1981.