                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45040

KENNETH EUGENE THURLOW,                          )
                                                 )     Filed: August 13, 2018
       Petitioner-Appellant,                     )
                                                 )     Karel A. Lehrman, Clerk
v.                                               )
                                                 )     THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                  )     OPINION AND SHALL NOT
                                                 )     BE CITED AS AUTHORITY
       Respondent.                               )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Barbara A. Buchanan, District Judge.

       Order denying petition for post-conviction relief, affirmed.

       Fyffe Law; Robyn Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Kenneth Eugene Thurlow appeals from the district court’s order denying his petition for
post-conviction relief after an evidentiary hearing.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       This Court set forth the factual and procedural background on Thurlow’s direct appeal as
follows:
              In August 2005, Thurlow and Christopher Lewers went to a junkyard
       armed with concealed shotguns and baseball bats. The victim, who was working
       on his vehicle near the junkyard’s garage, was shot in the head with a shotgun at
       close range. Prior to the shooting, Thurlow approached a caretaker, who was
       working in the junkyard garage, and asked the caretaker if he had any muriatic
       acid. The caretaker left the garage and went to his residence on the junkyard
       property to look for the acid. When he was unsuccessful in locating the acid, the
       caretaker began to walk back to the garage to notify Thurlow. However, as he
       was leaving his residence, he noticed Thurlow approaching. Thurlow told the
       caretaker that the victim was dead and asked for help loading the body into a

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       nearby truck. The caretaker walked back toward the garage and observed the
       victim’s body lying on the ground and Lewers standing nearby.
               The caretaker informed Thurlow and Lewers that the truck was inoperable
       and, fearful for his life, fled the junkyard. After hiding out for several hours, the
       caretaker returned to the junkyard and called the police. During the caretaker’s
       absence, Thurlow and Lewers stole several items from the victim’s truck, left the
       victim’s body behind, and sold the victim’s possessions to an acquaintance later
       that night.
               Thurlow was charged with first degree murder, and Lewers was charged
       with aiding and abetting. Thurlow was represented by one of the conflict public
       defenders for the county. Prior to trial, Thurlow filed a motion for appointment of
       co-counsel, which the district court denied. Thurlow went to trial and, at the
       conclusion of its case-in-chief, the state moved to amend the information to
       charge Thurlow in the alternative with first degree murder by aiding and abetting
       in the crime. The jury found Thurlow guilty of first degree murder. I.C. §§ 18-
       204, 18-4001, 18-4002, 18-4003(a), 18-4004.
               The district court entered a judgment of conviction and imposed a fixed
       life sentence. The judgment of conviction contained two clauses indicating that
       Thurlow had waived his right to appeal during plea negotiations. The district
       court entered an amended judgment of conviction removing one of the erroneous
       waiver statements. A second amended judgment of conviction was then entered
       removing the other waiver clause. Thurlow appeals, arguing that the district court
       abused its discretion in denying his request for appointed co-counsel and in
       imposing an excessive sentence.
State v. Thurlow, 152 Idaho 256, 257, 269 P.3d 813, 814 (Ct. App. 2011). This Court affirmed
Thurlow’s judgment of conviction.
       Thurlow filed a pro se petition for post-conviction relief. Thereafter, court-appointed
counsel filed an amended petition raising various claims of ineffective assistance of trial counsel.
The district court granted the State’s motion for summary dismissal on all claims. Thurlow
appealed the dismissal of one of his claims to this Court. Specifically, Thurlow asserted his trial
counsel was ineffective during the plea negotiation stage because counsel told Thurlow he would
only be convicted of felony accessory after the fact. But for this advice, Thurlow claims he
would have accepted the State’s plea offer instead of proceeding to court. Thurlow v. State,
Docket No. 42763 (Ct. App. Sept. 12, 2016) (unpublished). This Court concluded there were
genuine issues of material fact and remanded the case to the district court.
       On remand, the district court held an evidentiary hearing at which Thurlow and his trial
counsel testified. The district court concluded that Thurlow had failed to meet his burden to
prevail on an ineffective assistance of counsel claim. Consequently, it denied his remaining
claim and dismissed his petition for post-conviction relief. Thurlow timely appeals.

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                                                II.
                                           ANALYSIS
       Thurlow argues the district court erred by denying his claim of ineffective assistance of
counsel. In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675,
677 (Ct. App. 2010).      When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382
(2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of
the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden
of showing that the attorney’s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007).
       To establish prejudice, a petitioner must show a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding would have been different.
Harrington v. Richter, 562 U.S. 86, 104 (2011). “In the context of pleas a defendant must show
the outcome of the plea process would have been different with competent advice.” Lafler v.
Cooper, 566 U.S. 156, 163 (2012). Where there is a claim that deficient performance led to the
rejection of a State’s plea offer, to establish prejudice the defendant must show: (1) “but for the
ineffective advice of counsel there is a reasonable probability that the plea offer would have been

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presented to the court (i.e., that the defendant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening circumstances)”; (2) “the court would have
accepted its terms”; and (3) “the conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that in fact were imposed.” Id. at
164.
        After reviewing the record, it is apparent that Thurlow’s remaining claim in his petition
for post-conviction relief did not raise the possibility of a valid ineffective assistance of counsel
claim. Thurlow did not present a viable claim of deficient performance as required by the first
prong of the Strickland test. Thurlow asserts that it was objectively unreasonable for his trial
counsel to advise him to reject the plea offer and the district court erred in finding Thurlow’s
testimony at the evidentiary hearing did not establish deficient performance. To support his
position, Thurlow notes that during the evidentiary hearing he testified that in late May or early
June his trial attorney told Thurlow that she thought if they went to court that Thurlow would be
found guilty of accessory to murder and that carried a penalty of five years. However, when
asked if they had discussed other possibilities of what may happen, Thurlow responded, “Well, I
asked her about that, and she told me that it could possibly be felony murder.” On cross-
examination Thurlow reiterated, “She had warned me that I could be convicted of felony murder,
yes, sir.”
        Furthermore, Thurlow’s assertion is largely centered on a handwritten note his trial
counsel made on a copy of I.C. § 18-205, which defines accessories, and sent him via fax:
        Kenny-
                This is the crime I believe you would/will be found guilty of if we go to
        trial. Maximum penalty is 5 years. State v. Barnes is attached. It is a Bonner Co.
        case + explains how little a person has to do to become an accessory after the fact.
        Thought you might be interested.
        However, the date at the top of the fax shows that it was sent September 11, 2006. This
is approximately three months after the expiration of the plea offer; therefore, the letter has little
to no relevance as recognized by the district court. Additionally, his trial counsel explained that
it was in regard to a discussion they had about which other lesser included jury instructions she
would be requesting. His declarations on appeal that their meeting in late May or early June
lasted approximately fifteen minutes, was held in a visiting area where they sat on opposite sides
of a glass barrier speaking on phones, and Thurlow had suffered from mental health and drug
addiction issues are similarly unpersuasive in supporting his argument trial counsel’s
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performance fell below an objective standard of reasonableness. Thurlow did not meet his
burden of showing that his trial counsel’s representation fell below an objective standard of
reasonableness.
       Thurlow also failed to present a viable claim of prejudice, as required by the second
prong of Strickland. Regarding the specifics of the plea offer, Thurlow testified his trial counsel
explained it was conditioned on both Thurlow and Lewers accepting it, that counsel expressed
her belief that Lewers would not accept the offer, and that it was offered for a short period of
time. Regarding the requirement, Lewers needed to accept its terms as well, Thurlow was asked
at the evidentiary hearing, “So basically the offer was there but it wasn’t an offer because Chris
Lewers wasn’t going to accept it?” Thurlow answered, “That’s kind of what I understood, yes.”
There was no showing that the State’s plea offer would ultimately have been available to
Thurlow even if he would have tried to accept it. Thus, Thurlow has failed to establish the
district court erred in finding no prejudice.
       Thurlow has failed to show his trial counsel was ineffective during the plea negotiation
stage by providing inaccurate information.         Thurlow cannot demonstrate that there is a
reasonable probability that, but for counsel’s errors, he would not have pled guilty and would
have insisted on going to trial. As such, the district court did not err in denying his remaining
ineffective assistance of trial counsel claim.
                                                 III.
                                          CONCLUSION
       Thurlow has failed to establish that his attorney provided ineffective assistance of
counsel. Therefore, the district court’s judgment denying Thurlow’s post-conviction petition is
affirmed.
       Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.




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