(dissenting) — The issue in these consolidated cases is simple to state. Did the Supreme Court mean what it said in In re Lee, 95 Wn.2d 357, 623 P.2d 687 (1980)?
The holding in Lee is that a defendant may not utilize a personal restraint petition to challenge the constitutional validity of the guilty pleas used to sentence him as a habitual criminal unless he raised that issue on direct appeal from the habitual criminal finding. In the course of this holding, the court reasoned that
even though a petitioner raised no objection at trial to the admissibility of evidence of a prior conviction ... as a matter relating to a constitutional right he would not have been precluded from raising the issue on appeal.
Lee, at 364.
By rejecting this language, the majority creates a " Catch-22" situation by telling the defendant that he may not raise the issue for the first time on appeal even though the Supreme Court in Lee told the defendant that he not only can but must raise the issue for the first time on appeal in order to qualify for consideration of personal restraint relief. The majority closes all doors by also rejecting the personal restraint petitions even though petitioners attempted to raise the issue on appeal. I would follow the holding of Division Two of this court and address the merits when the issue is raised for the first time on an appeal that is pending at the time of the decision in State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980). State v. Gear, 30 Wn. App. 307, 633 P.2d 930 (1981); see also State v. Ross, 30 Wn. App. 324, 634 P.2d 887 (1981).
The majority's reasoning overlooks the fact that Hols-worth created a new burden on the accused by conditioning the State's burden of proof on a requirement that the *570accused first raise the issue at trial.4 That burden did not exist when the defendants in Lee were tried. This explains the Supreme Court's statement that they could have raised the insufficiency of the State's evidence for the first time on direct appeal. Only post-Holsworth habitual criminal trials are subject to the rule that the State assumes no burden unless the issue is raised at trial. The majority's ex post facto application of this new rule is entirely unwarranted. See State v. Timmons, 12 Wn. App. 48, 527 P.2d 1399 (1974).
All defendants here were tried before the decision in Holsworth, and therefore were not subject to the burden of raising the issue before the State was required to prove the constitutional validity of their pleas. RAP 2.5(a)(2) allows these defendants to raise for the first time on appeal, a claim that the State did not "establish facts upon which relief [i.e., the habitual criminal judgment] can be granted." Furthermore, RAP 2.5(a)(3) allows these defendants to raise "manifest error affecting a constitutional right" for the first time on appeal. There is no more "manifest" constitutional error than entering a judgment of conviction based upon insufficient evidence. As stated in Jackson v. Virginia, 443 U.S. 307, 323, 61 L. Ed. 2d 560, 576, 99 S. Ct. 2781 (1979), "[t]he question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence."
The foregoing analysis eliminates any fear of numerous costly remands because most of our cases will involve appeals from post-Holsworth judgments. The defendants will not be heard in such cases unless the issue of the validity of prior pleas was raised at trial. This analysis also demonstrates that this is not a matter of raising mere evidentiary or procedural questions for the first time on *571appeal. Instead, the issue concerns a fundamental constitutional right, and the importance of this right is not diminished by the fact that it is allegedly violated by an evidentiary ruling. Pointer v. Texas, 380 U.S. 400,13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). Unlike the mere admissibility of evidence or even search and seizure questions, the right to be free of punishment absent proof beyond a reasonable doubt "is central to the basic question of guilt or innocence." Jackson v. Virginia, supra.
The record in these cases is inadequate to permit a decision on the merits. As we did in State v. Chervenell, 28 Wn. App. 805, 626 P.2d 530 (1981), I would remand the habitual criminal findings in Williams and Morrison for reinstatement of the proceedings.
In Lowe, I would reverse the judgment in accord with State v. Swindell, 22 Wn. App. 626, 590 P.2d 1292 (1979), aff'd, 93 Wn.2d 192, 607 P.2d 852 (1980).
Reconsideration denied December 16, 1981.
Review granted by Supreme Court February 19, 1982.
The rule that constitutionally valid guilty pleas are necessary to sustain the sufficiency of the evidence of prior guilty pleas was established prior to State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980). In re Lee, 95 Wn.2d 357, 623 P.2d 687 (1980).