East Naples man's life sentence for child porn too harsh, attorney says

Greg Kahn/Staff 
 Carmen Guevara, center, weeps as her son, Daniel Guevara Vilca, who was found guilty of 454 counts of possessing child pornography, is escorted out of a courtroom Nov. 3, 2011, to eventually begin his lifelong prison term. Collier Circuit Judge Fred Hardt sentenced Vilca to 454 concurrent life sentences.

Photo by GREG KAHN, Naples Daily News

Greg Kahn/Staff Carmen Guevara, center, weeps as her son, Daniel Guevara Vilca, who was found guilty of 454 counts of possessing child pornography, is escorted out of a courtroom Nov. 3, 2011, to eventually begin his lifelong prison term. Collier Circuit Judge Fred Hardt sentenced Vilca to 454 concurrent life sentences.

Greg Kahn/Staff
Daniel Guevara Vilca listens Thursday to his attorney, Lee Hollander, in a Collier County courtroom.

Photo by GREG KAHN, Naples Daily News

Greg Kahn/Staff Daniel Guevara Vilca listens Thursday to his attorney, Lee Hollander, in a Collier County courtroom.

Sentenced to 454 counts of possessing child pornography, Daniel Enrique Guevara Vilca now faces the same fate as many murderers, child abductors and rapists — life in prison.

Whether the East Naples man's crime fits the punishment is an argument his lawyer will continue to make beyond Thursday, when Collier Circuit Judge Fred Hardt followed statutes that allowed him to sentence the 26-year-old to a life behind bars.

Guevara Vilca was convicted Oct. 6 on the possession counts, which stemmed from the January 2010 seizure of a computer from his Landover Court apartment. Collier County sheriff's investigators found hundreds of images and videos depicting children in various sexual acts on Guevara Vilca's laptop.

His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record.

Robert Hamberg, a former band teacher convicted of having sex with a student, was sentenced to 30 years in prison in April. Kenneth Wilson, who pleaded guilty in 2008 to 130 counts of child porn possession, received 20 years. And in other violent cases, such as manslaughter and aggravated assault, defendants have avoided a life sentence.

"People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it," Hollander said. "The guy is doing life in prison for looking at child porn. I'm sorry, but that just doesn't compute."

Less sympathetic Thursday was Assistant State Attorney Steve Maresca. He said it was "offensive" to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused.

"I think (the sentence) sends a message that this is a serious crime," Maresca said. "This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever."

Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.

Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant's mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence.

"The fact that this court might — and I'm not saying it does — believe that this sentence is disproportionate is not valid grounds for departure," Hardt said.

Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.

The principle of his claim — that a child porn consumer shouldn't receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.

"That argument can be made," said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. "How good it is and how persuasive is another question. I don't find it very persuasive."

Dekle said it's not a prosecutor's job to consider a potentially harsh punishment when a defendant doesn't accept a plea agreement.

"I have been in situations where people I prosecuted wound up getting much more severe sentences than I thought was justified," Dekle said. "The circumstances vary in those situations, but they're people who took their chances at trial. When somebody commits a crime, you prosecute them for the highest crime you can prove."

Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive.

"I don't think somebody should get life in prison for possessing child pornography that they didn't produce," Lave said. "I don't think it should be the same as somebody who commits first-degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionally."

A life sentence ignores the possibility of rehabilitation and imposes hundreds of thousands of dollars in incarceration costs to taxpayers, Lave said. Sex offenders tend to have low recidivism rates, Lave said, and other measures can be imposed, such as probation and monitoring of computer usage.

"The guy is young and has a whole life in front of him," Lave said. "There's no reason to think he can't learn from his mistakes."

Hollander said his appeal of the sentence "probably is going to end up in front of the Florida Supreme Court in some shape or form."

But Robert Rosen, a law professor at the University of Miami, said his Eighth Amendment claim is likely to fall on deaf ears. Any reform in sentencing for cases such as Guevara Vilca's likely would need to be done by lawmakers, Rosen said.

"It's not a winning argument in this case and it's not one in many cases," Rosen said. "It's been raised many times and it doesn't win. You go to the Legislature if you want to change the statute."

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