Resentencing for pedophile

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jbulger@journalnet.com

POCATELLO -- A Pocatello man convicted in 2004 for possession of child pornography and for lewd and lascivious conduct with a 6-year-old girl was back in court Monday for resentencing on the charges.

Thomas Herrera, 40, pleaded guilty in 2004 as part of a plea agreement and was sentenced to 15-year fixed, 10-year indeterminate sentences as to both charges, to run concurrently. Herrera was back in court Monday for resentencing because of a 2006 decision by the Idaho Supreme Court.

The case, State v. Estrada, held that the Fifth Amendment right against self-incrimination applies to psychosexual evaluations. Such evaluations have often been ordered by judges prior to sentencing. Herrera received such a court-ordered evaluation by Sixth District Judge Ronald E. Bush, requiring he be resentenced.

Herrera's counsel, Dennis Benjamin, asked that Herrera, who has served approximately five years, be given a five-year fixed, 15-year indeterminate sentence on the charges, to run concurrently.

Benjamin told Sixth District Judge David Nye, who was assigned the case for resentencing, that a five-year fixed sentence would probably allow Herrera to get necessary treatment for parole eligibility within two to three years.

The parents of the victim strongly objected to Herrera's sentence being shortened.

"I didn't really want to be here today, but I figure my daughter did the hardest part when she cane and told my wife and I what happened," the father said.

The girl's father said his daughter is still affected by the abuse, particularly as to insecurity and distrust of strangers. The girl's mother recounted how Herrera, who was related by marriage to the family, tried to "groom" the girl for sexual abuse and used threats to keep the child from revealing the incidents. She said the incidents shook her belief she could always look after her children's welfare.

"Unfortunately, they can run into monsters like Thomas Herrera," she said.

Bannock County Chief Deputy Vic Pearson noted that Herrera filmed the girl, as well as his own daughter, who was 4-years-old at the time.

"Talk about violating a trust--the trust of an uncle, the trust of a father," he said. "He stole the innocence of a 6-year-old girl."

Pearson asked for a 20-year fixed, lifetime indeterminate sentence on the lewd and lascivious conviction and three-year fixed, two-year indeterminate sentence on each of the five possession of child pornography counts.

Nye sentenced Herrera to a 13-year fixed, lifetime indeterminate sentence on the lewd and lascivious conduct count and followed the state's recommendation as to possession of child pornography. Nye ordered the pornography counts to run concurrently with each other, but consecutively to the lewd conduct charge. Herrera will have to serve a minimum of 16 years, with credit for the time he has already served.

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