Personal Restraint Petition Of John Lloyd Kirk ( 2013 )

COUiH ol ``~f>~\.Ls
OIV l
STATE OF W.t;SH~rtGTOH
ZOl3 MAR 18 AM 8: 39
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE ) No. 69168-6-1
PERSONAL RESTRAINT OF: )
) DIVISION ONE
JOHN KIRK, )
) UNPUBLISHED OPINION
Petitioner. )
) FILED: MAR 1 8 2013
PER CURIAM. John Kirk pleaded guilty to one count of attempted
promoting commercial sex abuse of a minor in King County Superior Court No.
11-1-00319-8 SEA. He filed a motion to withdraw his plea, alleging that his
offender score was miscalculated, the charging document was constitutionally
defective, and he was denied effective assistance of counsel. The superior court
transferred the motion to this court for consideration as a personal restraint
petition. CrR 7.8(c)(2). The State concedes that Kirk's offender score is
erroneous. We accept the State's concession of error and remand for further
proceedings consistent with this opinion.
At the time of sentencing, the State and defense agreed that Kirk had an
offender score of five. Included in his offender score were 1980 convictions for
third degree statutory rape and indecent liberties. But these convictions had been
dismissed under former RCW 9.95.240, and cannot be considered in Kirk's
offender score. See In re Pers. Restraint of Carrier, 173 Wash. 2d 791, 818-819, 272
P.3d 209 (2012). Where a defendant is misinformed as to a direct consequence
No. 69168-6-1/2
of his plea, he is entitled to either withdraw his plea or to specific performance of
the plea agreement, unless the State can show that the remedy chosen is unjust
and there are compelling reasons not to allow that remedy. In re Pers. Restraint
of Isadore, 151 Wash. 2d 294, 303, 88 P.3d 390 (2004).
We grant Kirk's request to remand the matter to the superior court where
Kirk may withdraw his plea. As such, we need not address Kirk's remaining
claims, which Kirk may pursue in the superior court, nor Kirk's objection to the
transfer of his motion to this court as a personal restraint petition.
For the court:
-2-