¶1(dissenting).
¶2In my view, the central issue in this appeal is whether Tafoya has made a sufficient showing of “manifest injustice” under Criminal Rule 32(d) to warrant the setting aside of the judgment of conviction which was entered against him and to permit him to withdraw his guilty plea.
A motion to withdraw a plea of guilty . may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court, after sentence, *253may set aside the judgment of conviction and permit the defendant to withdraw his plea.
¶3Resolution of this Criminal Rule 32(d) issue turns on whether the possibility of Tafoya’s deportation was one of the consequences of his guilty plea of which he must have had knowledge in order to have pled “voluntarily” to the rape charge.
¶4In my view, the court’s reliance upon the majority opinion in United States v. Par-rino, 212 F.2d 919 (2d Cir. 1954), is misplaced. In Parrino, the defendant had fully served a two-year sentence and was faced with deportation as a result of his conviction when he attempted to withdraw his guilty plea. Withdrawal was not allowed because
[generally . . . the defendant’s surprise as to the severity of sentence imposed after a plea of guilty, standing alone, is not such manifest injustice as to require vacation of the judgment. . . . 212 F.2d at 921.
¶5I question that result, since Parrino’s trial counsel, an immigration law “expert,” had informed Parrino there was no danger of deportation. Better reasoned and more persuasive is Judge Frank’s dissent in Par-rino. Judge Frank begins by noting that “[djeportation, while not literally constituting criminal punishment, may have far more dire effects” on a defendant than a sentence of. imprisonment.
¶6Judge Frank’s view in Parrino has been cited with approval by Professor Moore who states that “the vigorous dissent of Judge Frank more likely reflects the present attitude of the federal judiciary.”
[I]n this Court, where it is mandated that the full range of consequences be set out ... it seems onerous and absurd to expect a judge to explain to each and every defendant who pleads guilty the full range of collateral consequences of his plea ....5 I do not find such reasoning persuasive.
¶7On the particular facts of this record, I would hold that Tafoya has made out a case of “manifest injustice” under Criminal Rule 32(d), which showing requires that his judgment of conviction be set aside and that he be permitted to withdraw his plea of guilty to the charge of rape.
¶8My analysis of the case at bar necessarily involves an assessment of the record as well as application of Criminal Rule 32(d) to the pertinent portions of the record. In making this analysis, I have taken into consideration the roles played by plea bargaining and guilty pleas in the administration of criminal justice in the federal and various state systems, as well as in Alaska’s system of criminal justice. A high percentage of all criminal cases are disposed of on guilty pleas.
¶9Were the proportion of pleas to trials reduced, the machinery of justice . . . would break down. These facts
¶10of judicial life are worth emphasizing on
¶11occasions when the courts express irritation with alleged abuse of post-conviction remedies.
¶12Given the dependence of our system of criminal justice upon waivers by defendants of their constitutional rights, embodied in jury trial determinations of their innocence or guilt, our courts have the concomitant obligation to insure that a guilty plea is “made voluntarily after proper advice and with full understanding of the consequences.”
¶13Criminal Rule 32(d) affords the accused the procedural vehicle for withdrawal from plea bargains which were entered into without the necessary information to make an intelligent decision.
¶14In regard to the question as to precisely what an accused should be advised of by the court in order for the court to determine whether the plea of guilty is made with an understanding of its consequences as required by Criminal Rule ll,
¶15I also cannot agree with the court’s holding that Tafoya was accorded effective assistance of counsel as guaranteed him by the United States
¶16In order to reach the conclusion that deportation of an alien is merely a collateral consequence of his guilty plea, one ¡must necessarily view the right to live in the United States of America, as well as banishment therefrom, as matters of small moment. I am not prepared to mute the drastic ramifications deportation can have for the individual involved. In my view, effective assistance of counsel in the circumstances of this case required Tafoya’s *257attorney to acquaint himself with the federal law governing convictions of aliens and to inform Tafoya of deportation possibilities arising from his plea. Absent any such minimal legal assistance, I cannot join in this court’s conclusion that Tafoya received competent legal representation prior to and at the time he pled guilty.
¶17For the foregoing reasons I would reverse the superior court’s order denying Tafoya post-conviction relief and remand the case with directions to set aside Tafoya’s judgment of conviction and, pursuant to Criminal Rule 32(d), to permit Tafoya to withdraw his guilty plea to the charge of rape.
¶18. Federal authority has established that, prior to imposition of sentence, withdrawal of a plea of guilty should be allowed if it was induced by fraud, mistake, imposition, misrepresentation, or misapprehension by the defendant of his legal rights. Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967) ; Williams v. United States, 192 F.2d 39 (5th Cir. 1951).
In Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927), the Supreme Court said:
[O]n timely application, the court will vacate a plea of guilty shown to have *253been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just, (citation omitted.)
According to Professor Wright, the sounder view “supported both by the language of the rule and by the reasons for it, would be to allow withdrawal of the plea prior to sentencing unless the prosecution has been substantially prejudiced by reliance upon the defendant’s i)lea.”
2 C. Wright, Federal Practice and Procedure § 538, at 4474-75 (1969) (footnote omitted) ; See United States v. Stayton, 408 F.2d 559 (3rd Cir. 1969).
After sentence has been imposed, Crim. R. 32(d) provides that withdrawal of a plea of guilty or nolo contendere will be allowed only “to correct manifest injustice.” The grounds for the presentence post sentence distinction drawn by the rule was explained in Kadwell v. United States, 315 F.2d 667, 670 (9th Cir. 1963) :
This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process, (emphasis in original) (footnotes omitted)
¶19. Judge Frank goes on to say:
For the Supreme Court has said that “deportation is a drastic measure, at times the equivalent of banishment or exile” and “is a penalty.” Mr. Justice Jackson has described it as “a life sentence of banishment”. I cannot believe that no “manifest injustice” exists merely because of the sentence of banishment for life was not imposed directly by the judge.
¶20United States v. Parrino, 212 F.2d 919, 924 (2d Cir. 1954) (dissenting opinion) (footnotes omitted).
¶21. Alaska’s Crim.K. 32(d) is identical to Fed.R.Crim.P. 32(d).
¶22. 8A J. Moore, Federal Practice ¶ 32.07 [3], at 32-106 (2d ed. 1972) (footnotes *254omitted). See also United States v. Bris-coe, 139 U.S.App.D.C. 289, 432 F.2d 1351, 1353 (1970).
¶23Legal commentary, to the limited extent it addresses itself to the consequences of deportation, favors the approach taken by Judge Frank in his Parrinodissent. A Note in the Yale Law Journal concluded :
[A] defendant who is able to establish that his plea was entered because of mistake as to consequences should be allowed withdrawal .... [T]here still exists the possibility of a guilty plea being entered by an innocent person relying on the security of a known outcome. This possibility is present whether the mistake concerns ‘collateral’ or ‘direct’ consequences. Note, 64 Yale L.J. 590, 599 (1955) (footnotes omitted) .
¶24A Note in 55 Colum.L.Rev. 366, 378 (1955), concluded that its argument against allowing withdrawal “is less persuasive where serious consequences, like deportation or expatriation, are involved.”
¶25A Note in the Wash. University Law Quarterly states in part that although it is clear that the collateral consequences of a conviction need not be understood by the defendant about to plead guilty “[w]hat constitutes a ‘collateral’ consequence remains obscure.” The Note then states:
For example, parole ineligibility is now characterized as a direct consequence, although one classified as a collateral consequence about which a defendant need not be informed. Other collateral consequences, deportation conspicuously have chimerical characteristics of ‘directness’ which may eventually lead to a similar shift in dissatisfaction. Note, 1970 Wash.U.L.Q. 289, 320.
¶26. Joseph v. Esperdy, 267 F.Supp. 492, 494 (S.D.N.Y.1966) (emphasis in original) .
¶27. In my view, the accused’s guilt or innocence is not relevant in regard to a motion to withdraw a guilty plea under Crim.
It. 32(d). Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009, 1012 (1927) ; 2 C. Wright, Federal Practice and Procedure § 537, at 469-71 (1969). A.B.A. Minimum Standards on Pleas of Guilty § 2.1(a) (iii) (approved Draft, 1968).
¶28. I do not necessarily find that Tafoya’s plea of guilty was involuntary in the Crim.lt. 11 sense, for a Crim.R. 32(d) motion to withdraw a guilty plea need not assert that the trial court failed to comply *255with the provisions of Crim.R. 11. United States v. Sambro, 454 F.2d 918, 925-926 (D.C.Cir. 1971) (separate opinion of Chief Judge Bazelon) ; Pilkington v. United States, 815 F.2d 204, 209 (4th Cir. 1963). In Pilkington, the court stated :
While there may be a considerable overlap, the concept of ‘manifest injustice’ under Rule 32(d) permits the judge a greater latitude than the requirements of constitutional ‘due process.’ The facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative of due process, yet the court may be of the opinion that clear injustice was done. 315 F.2d at 209. (citations omitted)
¶29Compare Professor Wright’s statement that
[t]here is one apparent exception to the ‘manifest injustice’ standard. This is that if the court has failed to scrutinize a guilty plea properly, as required by Rule 11, before accepting it, an application after sentencing to withdraw the plea must be judged by the same liberal standard that applies before sentence has been imposed.
2 C. Wright, Federal Practice and Procedure | 539, at 476 (1969) (footnote omitted). In support of the text, Professor Wright cites United States v. Cody, 438 F.2d 287 (8th Cir. 1971), and Bishop v. United States, 121 U.S.App.D.C. 243, 349 F.2d 220 (1965).
¶30. 8A J. Moore, Federal Practice ¶ 32.07 [3], at 32-97 (2d ed. 1972) ; President’s Commission on Law Enforcement and The Administration of Justice, Task Force Report: The Courts, at 9 (1967) ; Note, Plea Bargaining: A Model Court Rule, 4 J. L. Reform 487 (1971).
¶31. 8A J. Moore, Federal Practice ¶ 32.07 [3], at 32-97 (2d ed. 1972) (footnotes omitted).
¶32. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927).
¶33. United States v. Sambro, 454 F.2d 918, 925 (D.C.Cir. 1971) (separate opinion of Chief Judge Bazelon).
¶34. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927).
¶35. See discussion in note 1, supra.
¶36. A procedural problem should be mentioned in my view. In the superior court, Tafoya denominated his application seeking leave to withdraw his guilty plea as an application for post-conviction relief.
¶37My study of this application and the relief sought therein suggests that proeedurally Tafoya should have moved pursuant to Crim.R. 32(d), which governs withdrawals of guilty pleas, rather than under Crim.R. 35(b), which generally governs post-conviction relief matters.
Since counsel for Tafoya could have reasonably read Nichols v. State, 425 P.2d 247 (Alaska 1967), and Thompson v. State, 412 P.2d 628 (Alaska 1966), as approving use of Crim.R. 35(b) as the proper procedural vehicle for seeking withdrawal of a guilty plea after sentence had been imposed, I think the matter should be considered as properly before us in the procedural sense. In future cases where a defendant desires to withdraw a plea of guilty or of nolo contendere after imposition of sentence, such relief should be sought by way of motion made, pursuant to Crim.R. 32(d).
¶38. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418, 425 (1969) (footnote omitted) :
[T]he more meticulously the Rule [Rule 11] is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.
¶39. Amends. VI, XIV.
¶41. Nor can I find that through the conscientious and diligent efforts of his trial counsel Tafoya was given effective assistance of counsel in accordance with established notions of fair play and substantial justice. Condon v. State, Opinion No. S02, 498 P.2d 276 (Alaska 1972).