                                                              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                                            )      UNPUBLISHED OPINION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 Wn.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 Wn.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:




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