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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 33969

STATE OF IDAHO,

Plaintiff-Respondent,

v.

KENNETH EUGENE THURLOW,

Defendant-Appellant.

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2011 Opinion No. 40

Filed: July 6, 2011

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, 

Bonner County. Hon. John P. Luster, District Judge. 

Judgment of conviction and fixed life sentence for first degree murder, affirmed. 

Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

______________________________________________

PERRY, Judge Pro Tem

Kenneth Eugene Thurlow appeals from his judgment of conviction and fixed life

sentence for first degree murder. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

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 
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and asked for help loading the body into a 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. 

II.

ANALYSIS

A. Timeliness

Thurlow’s notice of appeal was not filed within forty-two days from his original 

judgment of conviction. Therefore, the state argues that this Court is without jurisdiction to 

entertain Thurlow’s appeal.

Thurlow, presumably in anticipation of the state’s jurisdictional argument, filed a motion 

with the Idaho Supreme Court seeking an order clarifying jurisdiction. At the Supreme Court’s 

request, the state filed an answer. The Supreme Court entered an order maintaining jurisdiction 
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of the appeal and indicating that the appeal would proceed on all issues. Therefore, we need not 

address the state’s argument regarding the timeliness of Thurlow’s notice of appeal.

B. Appointment of Co-counsel

Thurlow argues that the district court abused its discretion by refusing to grant his request 

for appointed co-counsel. Specifically, Thurlow contends the district court inappropriately 

focused on potential interference with the county’s contracts for public defenders instead of 

examining the need for co-counsel. Although I.C.R. 44.3(2) governs the appointment of two 

attorneys in a capital case, the denial of a request for appointed co-counsel in a noncapital case is 

an issue of first impression in Idaho.

The Sixth Amendment does not require that more than one attorney be 

appointed for an indigent criminal defendant, unless the appointment of more than 

one attorney is necessary for the defendant to receive the effective assistance of 

counsel which is his or her right under that Amendment. Even in a capital case 

there is no blanket constitutional requirement of appointment of more than one 

attorney, although such a right may exist under the statutes of a particular 

jurisdiction. Generally, when an indigent defendant has been provided with an 

attorney at public expense, his or her request for additional counsel is committed 

to the trial court’s discretion. Denial of a request for appointment of additional 

counsel is proper when the amount of preparation and investigation required to 

defend the case is not unduly burdensome. When the resources of one appointed 

counsel will not suffice to adequately represent a defendant, the appointment of 

cocounsel is proper.

21A AM. JUR. 2D Criminal Law § 1115 (2008) (footnotes omitted). 

Other states do not recognize an absolute right to appointment of co-counsel in noncapital 

cases, holding that appointment of co-counsel is allowed in situations where the record 

demonstrates that initial counsel was not adequately representing the accused. See People v. 

Lara, 103 Cal. Rptr. 2d 201, 209 (Cal. Ct. App. 2001); People v. Mitchell, 8 Cal. Rptr. 319, 323 

(Cal. Ct. App. 1960); State v. Chamberlain, 819 P.2d 673, 683-84 (N.M. 1991); Aranda v. State, 

640 S.W.2d 766, 771 (Tex. Ct. App. 1982). Further, as mentioned above, other jurisdictions 

have held that an indigent defendant’s request for appointment of co-counsel is left to the trial 

court’s discretion. See State v. Chun, 766 P.2d 676, 677 (Haw. 1989); State v. Sandlin, 300 

S.E.2d 893, 896-97 (N.C. Ct. App. 1983).

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the 
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issue as one of discretion; (2) whether the lower court acted within the boundaries of such 

discretion and consistently with any legal standards applicable to the specific choices before it; 

and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 

115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

In this case, Thurlow argued a motion before the district court to appoint co-counsel. 

Thurlow was represented by an attorney with the conflicts public defender contract for the 

county. The attorney argued primarily that the financial reimbursement of the contract precluded 

her from spending all of her time on Thurlow’s case and that she also needed to simultaneously 

represent other clients.

The district court responded to this argument by noting that it did not want to interfere 

with the county’s contract and that this issue may be better argued before the county’s 

commissioners. However, the district court also stated several times that there had been no 

showing of ineffective representation. Additionally, the district court left the matter open for 

further review, noting that “at some point in time this court may recognize that the representation 

is simply not suitable and may have to intervene.” The district court reviewed the nature of the 

case and authorized funds for an investigator, concluding:

I might also note that I think that it’s been important for the court to 

extend the investigative resources in this case, which I normally don’t do in any 

other case. And so to some extent I have already taken into account perhaps the 

unique and serious nature of this particular matter above and beyond other cases.

The district court addressed whether Thurlow was receiving effective assistance of 

counsel and concluded that he was. Thurlow has failed to show that the district court abused its 

discretion in denying Thurlow’s request for appointed co-counsel. 

C. Excessive Sentence

Thurlow argues that the district court abused its discretion in imposing a fixed life 

sentence for first degree murder. Specifically, Thurlow asserts that his crime was not so 

egregious to warrant a fixed life sentence. Thurlow further contends that the district court did 

not properly consider other mitigating factors, including his mental health and drug addiction 

issues, and the lack of felony convictions in his criminal record.

An appellate review of a sentence is based on an abuse of discretion standard. State v. 

Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, 

the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. 
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State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such 

an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 

103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it 

appears at the time of sentencing that confinement is necessary “to accomplish the primary 

objective of protecting society and to achieve any or all of the related goals of deterrence, 

rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650 

P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed 

an excessively harsh sentence, we conduct an independent review of the record, having regard 

for the nature of the offense, the character of the offender, and the protection of the public 

interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When 

reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 

144 Idaho 722, 726, 170 P.3d 387, 391 (2007).

Thurlow first asserts that the district court abused its discretion when it considered 

Thurlow’s crime to be so egregious to warrant a fixed life sentence. Thurlow contends that the 

district court improperly considered the premeditated nature of the crime to be enough, in and of 

itself, to impose a fixed life sentence for first degree murder. 

Imposing a life sentence requires a high degree of certainty that the defendant cannot be 

released safely back into society or that the nature of the offense requires the defendant to spend 

the rest of his or her life in prison. State v. Stevens, 146 Idaho 139, 149, 191 P.3d 217, 227 

(2008). The Idaho Supreme Court recently addressed a sentencing court’s ability to consider the 

nature of the offense when imposing a fixed life sentence in State v. Windom, ____ Idaho ____, 

____ P.3d ____ (2011). There, the Court, relying on previous decisions of this Court and the 

Idaho Supreme Court, reiterated that a sentencing court may consider the heinous and cruel 

nature of the crime when determining whether a defendant should spend the rest of his or her life 

in prison. Windom, ____ Idaho at ____, ____ P.3d at ____. See also State v. Cannady, 137 

Idaho 67, 73 44 P.3d 1122, 1128 (2002); State v. Jackson, 130 Idaho 293, 294, 939 P.2d 1372, 

1373 (1997). The Windom Court went on to hold that the sentencing considerations of societal 

retribution and general deterrence are decided based upon the unique characteristics of the 

offense. Windom, ____ Idaho at ____, ____ P.3d at ____. 

Given the calculated and cruel method in which the victim was killed, the district court 

determined that Thurlow’s crime of first degree murder mandated life in prison, stating:
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The act is punishable to the degree that it is because of the calculated and 

premeditated nature of the act. And that, I think, is what’s particularly disturbing 

in this case. . . .

. . . . The other thing that is of significant concern here is that this is a 

premeditated crime. This is a crime that involved planning, intention, deliberation 

and a purposeful act to take away a human life. . . .

. . . .

In this case the evidence seems to be pretty clear that you and Mr. Lewers 

had gone to the garage where [the victim] was located, you had shotguns that 

were concealed on your person underneath your long coats, or long shirts, 

whatever the case may be, and there was an apparent effort to distract one 

possible witness [who] was on the lot, and within a very short period of time [the 

victim] was shot to death, and then coldly and calculatedly his personal 

belongings were collected up. And you folks went right back to the den of 

methamphetamine use that you had left prior to this incident and casually bartered 

for some of this property that belonged to [the victim].

Thurlow asserts that the district court considered only the premeditated nature of the 

crime when fashioning the fixed life sentence. It is undisputed that Thurlow went to the 

junkyard with Lewers armed with a baseball bat and a concealed shotgun, stole the victim’s 

belongings after the murder, concealed evidence of the crime, lied to police, and failed to provide 

any explanation for why the murder occurred. At sentencing, the district court noted not only the 

calculated nature of the crime, but also the theft and later casual bartering of the victim’s

belongings, and the striking lack of motive for the “senseless” murder. 

Thurlow denied culpability in his participation in the crime, which demonstrated little 

potential for rehabilitation. Based on his decision to appeal his conviction, forty-five-year-old 

Thurlow declined to discuss his participation in the murder and exhibited no remorse for the 

victim’s death in the presentence investigation report. While Thurlow later expressed remorse 

for the victim’s death during the sentencing hearing, he also remarked that only the Lord knows 

what happened on the night of the murder and that he would not “go over what happened” during 

his allocution. On appeal, he continues to deny his culpability, arguing that testimony at trial 

“suggests” that he prevented the murder of the caretaker and that the evidence suggests that “he 

most likely did not pull the trigger.” However, the evidence Thurlow refers to is primarily his 

own testimony, which the district court found to be inconsistent with the evidence presented at 

trial. Thurlow is incorrect that the district court considered only the premeditated nature of the 

crime as the reason for the imposition of the fixed life sentence. The district court also 
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considered the lack of motive for the murder, the callous nature of the crime, and Thurlow’s 

potential for rehabilitation. 

Finally, Thurlow also argues that the district court did not properly take into account

other mitigating factors, including his mental health and drug addiction issues, and his lack of 

violent or felony criminal convictions. As our Supreme Court stated in Windom: 

Sentencing is less a science than an art. Judges face a different uncertainty 

principle than physicists: they must make a factual finding of the probability of 

future criminal behavior based upon limited data. In so doing, they draw upon 

their accumulated experience. It is precisely because of the difficulty of 

fashioning an objectively appropriate sentence that this Court has adopted a 

deferential standard of review of sentencing decisions. . . . 

. . . .

. . . . Our standard of review does not require (nor indeed, does it permit) 

us to conduct our own evaluation of the weight to be given each of the sentencing 

considerations (societal protection, general and specific deterrence, defendant’s 

prospects for rehabilitation and societal retribution) in order to determine whether 

we agree with the district court’s conclusion. . . .

In short, our task is not to determine whether we agree with the sentence 

imposed; rather, our duty is to determine whether Windom has demonstrated that 

the district court’s imposition of sentence constituted an abuse of discretion under 

the well-established standards of review governing such decisions. 

Windom, ____ Idaho at ____, ____ P.3d at ____. 

In this case, the district court recognized its discretion in sentencing Thurlow and noted 

that he sought the minimum sentence while the state sought the maximum. The district court 

articulated the goals of sentencing and indicated that the protection of society was of primary 

importance. The district court considered the egregious nature of the crime; acknowledged

Thurlow’s mental health issues, drug addiction, and lack of a criminal record; applied the correct 

legal standard; and arrived at the fixed life sentence through an exercise of reason. Thurlow 

requests that this Court reweigh the evidence presented before the district court and arrive at a 

different conclusion. However, as mentioned above, to do so would be contrary to our

established standards of review. Thus, Thurlow has not demonstrated that the district court 

abused its discretion in sentencing him to a fixed life sentence for first degree murder. 

III.

CONCLUSION

The Idaho Supreme Court determined that Thurlow’s appeal was timely and should be 

addressed on the merits. The district court did not abuse its discretion in denying Thurlow’s 
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request for appointed co-counsel nor did it abuse its discretion in sentencing Thurlow to a fixed 

life sentence for first degree murder. Accordingly, Thurlow’s judgment of conviction and 

sentence are affirmed.

Chief Judge GRATTON, CONCURS.

Judge GUTIERREZ, CONCURRING IN PART AND DISSENTING IN PART

I concur in sections II(A) and II(B) and respectfully dissent in section II(C) of the 

majority opinion based on the Idaho Supreme Court’s recent decision in State v. Windom, ____ 

Idaho ____, ____ P.3d ____ (2011). 

As the majority notes in Windom, the Idaho Supreme Court held that a sentencing court 

may impose a determinate life sentence based solely upon the nature and gravity of the offense. 

Id. at ____, ____ P.3d at ____. The Court further held that a defendant’s potential for 

rehabilitation may also be considered, but reiterated that the primary concern for a sentencing 

court is the protection of society. Id. at ____, ____ P.3d at ____; see also State v. Moore, 78 

Idaho 359, 363, 304 P.2d 1101, 1103 (1956). In Windom, the defendant severely beat his mother 

with a homemade club and then viciously stabbed her to death. The Supreme Court found no 

error in the imposition of the life sentence in that case based on the severe brutality and heinous 

nature of the crime. Windom, ____ Idaho at ____, ____ P.3d at ____. 

Our appellate courts have decided similar cases where determinate life sentences were 

affirmed based upon the heinous nature of the crimes committed. For instance, in State v. 

Stevens, 146 Idaho 139, 191 P.3d 217 (2008), the Idaho Supreme Court affirmed a fixed life 

sentence for the first degree murder of an eleven-month-old baby. In formulating the sentence, 

the sentencing court noted the brutal nature of the attack on a helpless, defenseless child. The 

Idaho Supreme Court affirmed the sentence, concluding that the injuries suffered by the child 

were “extreme” and that the amount of force required to cause the child’s death was “amazing.” 

Id. at 149, 191 P.3d at 227. The Supreme Court concluded that, even if the sentencing court had 

remained silent as to its reasons for imposing the fixed life sentence, the record alone would have 

supported the sentence. Id. 

Similarly, in State v. Jensen, 137 Idaho 240, 46 P.3d 541 (Ct. App. 2002), the defendant 

was also convicted of first degree murder and given a fixed life sentence. We described the facts 

of that case as follows:
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The next morning, Jensen and her two accomplices drove to the victim’s 

apartment and waited for Jensen’s husband to leave for work. The three entered 

the victim’s apartment and restrained the victim. The record reflects that the 

victim begged Jensen not to inject her with methamphetamine because she was 

allergic to it. Despite the victim’s pleas for mercy, Jensen injected the victim with 

insulin and methamphetamine. Jensen then watched the victim suffer for almost 

an hour, until she was satisfied that the victim could not call for help and would 

die soon. Jensen could have reversed the effects of the insulin and prevented the 

victim’s death at any time during that hour. Jensen then fled the apartment with 

her two accomplices and left the victim’s three-year-old daughter alone to watch 

her mother die.

Jensen, 137 Idaho at 243, 46 P.3d at 539. Based on those facts, the sentencing court determined

that the circumstances surrounding the murder were so heinous that a fixed life sentence was 

necessary. This Court affirmed, concluding that Jensen’s offense was so egregious that it 

demanded the “exceptionally severe measure of retribution and deterrence.” Id. at 245, 46 P.3d 

at 541. 

Finally, in State v. Williams, 135 Idaho 618, 21 P.3d 940 (2001), this Court upheld a 

determinate life sentence for a defendant who brutally murdered a person he suspected was a 

police informant. Williams beat the victim repeatedly with a golf club, at one point shouting 

“Fore” just prior to hitting the victim in the head. In addition, when the victim attempted to 

escape, Williams ran the victim over in the victim’s car at least three times. Evidence at trial 

revealed that the vehicle’s tires had been spun on the victim’s leg. Citing retribution and 

protection of society, the sentencing court imposed a fixed life sentence. This Court affirmed, 

holding that that the egregious nature of the crime rendered such a sentence reasonable. Id. at 

621, 21 P.3d at 943. 

In this case, the district court relied heavily upon the premeditated nature of the crime 

when imposing the determinate life sentence: 

In the end analysis, Mr. Thurlow, while it is not normally my position to 

agree to this extent, I think this particular case, given the deliberate and 

premeditated nature of this case, I think it does mandate and demand that the 

court impose the most significant sentence that this court is able to impose under 

the law. And it’s for that reason that I think that the appropriate disposition and 

appropriate consequence to serve purposes mainly as retribution in this case, and 

also protection of society, is to simply make sure that you are incarcerated for the 

rest of your life without the opportunity for parole.
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(Emphasis added.) However, the deliberate or premeditated nature of a crime is distinguishable 

from the brutality and heinous nature of the act as considered by the sentencing courts in 

Windom, Stevens, Jensen, and Williams. The district court in this case made no mention of the 

crime’s egregiousness or particularly heinous nature, relying primarily on Thurlow’s planning of 

the crime in advance. Therefore, based upon the standard articulated in Windom and the 

application of such a standard in our previous case law, I would vacate Thurlow’s determinate 

life sentence and remand to the district court for resentencing.