I respectfully dissent. Hemenway pleads that he was not informed of a direct consequence of his guilty plea, two years mandatory community placement. The sixth amendment requires that a guilty plea be knowing, voluntary, and intelligent. State v. Branch, 129 Wn.2d 635, 642,919 P.2d 1228 (1996) (citing Wood v. Morris, 87 Wn.2d 501, 505,554 P.2d 1032 (1976)). A plea entered without knowledge of all direct consequences is not knowing and intelligent. Accord State v. Ross,129 Wn.2d 279, 284, 916 P.2d 405 (1996); see also State v. Barton,93 Wn.2d 301, 306, 609 P.2d 1353 (1980) (citing Cuthrell v. Director,Patuxent Inst., 475 F.2d 1364 (4th Cir. 1973)). The mandatory community placement does not appear on the face of the plea and the State has not *Page 534 established by other evidence that Hemenway understood it was a direct and automatic consequence of his plea. Therefore, I would reverse the Court of Appeals' dismissal of his personal restraint petition and allow Hemenway to withdraw his guilty plea.
TIMING OF REVIEW Because Hemenway raises this argument in a personal restraint petition filed more than one year from final entry of judgment, he must establish that the time bar does not apply to him. RCW 10.73.090, .100. A challenge to a judgment and sentence that is not valid on its face may be brought at any time. RCW 10.73.090. Counsel conceded at oral argument (but not in the briefs) that Hemenway was not challenging his guilty plea, but instead basing his argument solely on facial invalidity of the judgment and sentence. Based on that concession, the majority does not reach whether the petition fits within an exception to the time bar.3 Majority at 3. This "concession" must be seen within the context of this court's RCW 10.73.090 jurisprudence. We have previously decided "that the phrase `on its face' includes those documents signed as part of a plea agreement." In re Pers. Restraint Petition of Stoudmire, 145 Wn.2d 258,265, 36 P.3d 1005 (2001) (Stoudmire II) (quoting In re Pers. RestraintPetition of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000) (Stoudmire I) (citing State v. Phillips, 94 Wn. App. 313, 317, 972 P.2d 932 (1999))). Therefore, a claim of invalidity based on the invalidity of the guilty plea is a claim of facial invalidity and reviewable under RCW10.73.090. *Page 535 INVOLUNTARY PLEAS A valid guilty plea must be knowing, voluntary, and intelligent.Branch, 129 Wn.2d at 642. The defendant must be informed of all direct consequences of the plea, and this includes mandatory community placement. Ross, 129 Wn.2d at 280. The mere fact the guilty plea omits the mandatory community placement does not end the issue. Branch,129 Wn.2d at 642. Since no mandatory community placement appears on the face of the guilty plea, the reviewing court must conduct a broader inquiry to determine if clear and convincing evidence exists that the defendant knew, at least in general terms, of this direct consequence of his plea. Ross, 129 Wn.2d at 287; Stoudmire II, 145 Wn.2d at 266. Once in play, the State bears the burden of establishing the validity of the guilty plea. Ross, 129 Wn.2d at 287.
There is simply no evidence that Hemenway knew of the mandatory community placement at the time he entered his plea. A plea is involuntary if it is made without knowledge of direct consequences, and withdrawal must be allowed to prevent a manifest injustice. Ross,129 Wn.2d at 283-84. Therefore, it is invalid, as is the judgment and sentence based upon it.4 This is a proper subject for a personal restraint petition, and Hemenway should properly be granted relief.
Hemenway asks for specific performance of his plea agreement. When a defendant "was not informed of the sentencing consequences of the plea, the defendant must be *Page 536 given the initial choice of remedy." State v. Miller, 110 Wn.2d 528,536, 756 P.2d 122 (1988). However, if the State can establish that remedy is unjust, a court may impose the other remedy, in this case, withdrawal of his plea. Miller, 110 Wn.2d at 536.
Given that the two year community placement is mandatory, I would decide relief as a matter of law and limit Hemenway to withdrawal of his guilty plea. See State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). I respectfully dissent.
McDermond, 112 Wn. App. at 248. Because of the timing of this case, this court has had no occasion to consider this proposal, and so our opinion should not be read as rejecting this approach.(1) Was the defendant incompletely or inaccurately advised about one or more consequences of the plea? (2) Could the defective advice have materially affected the defendant's decision to plead guilty? (3) Did the defective advice materially affect the defendant's decision to plead guilty? . . . If the answer to any question is no, the remaining questions need not be reached, and the plea should be upheld. If the answer to all three questions is yes, the plea should be set aside.