WA- Castle Rock man appeals banishment from county

10-26-2009 Washington:

A Castle Rock sex offender who was banished from Cowlitz County last year has appealed his case to the Washington State Supreme Court.

Jack Irvin Sims was convicted last year of first-degree child molestation after he entered the home of family friends and washed the back of an 11-year-old girl while she was in the shower.

Cowlitz County Superior Court Judge Jim Stonier allowed Sims to enter a program for first-time sex offenders, which suspended his sentence of 60 months-to-life, so long as he participated in a treatment regimen. But Stonier also banished Sims from Cowlitz County, saying his victim shouldn’t face the risk of seeing him in the community.

Smith, who has been living in Lewis County, first appealed his conviction to the Washington State Court of Appeals, saying the banishment was unconstitutional. In a ruling filed last month, the appellate court agreed, but in referring Sims back to the Cowlitz County court for sentencing, it also threw out his admission to the diversion program, which means Sims could face at least five years in prison.

In his brief to the state’s high court Smith’s attorney, John Hays, called the case “a significant question of constitutional magnitude.”

Hays argues that the appellate court’s ruling has a chilling effect on a defendant’s right to appeal an unconstitutional conviction. The reason, Hays wrote, is that Smith potentially faces additional prison time because the Appeal’s Court overturned his assignment to the sex offender diversion program. If a defendant can leave the Appeals Court facing a tougher penalty, Hays asks, why would he appeal in the first place?

The state’s high court is expected to take about five months to decide whether it will hear the case, Hays said Friday. ..Source.. by Tony Lystra