State v. Ash

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50783

STATE OF IDAHO, )
) Filed: December 19, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
TERRY ALLEN ASH, JR., )
)
Defendant-Appellant. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho,
Washington County. Hon. Randall S. Grove, District Judge.

Judgment of conviction and unified sentence of twenty-one years, with a minimum
period of confinement of eleven years, for involuntary manslaughter and use of a
deadly weapon, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Amy J. Lavin, Deputy Attorney General,
Boise, for respondent.
________________________________________________

LORELLO, Judge
Terry Allen Ash, Jr., appeals from his judgment of conviction and unified sentence of
twenty-one years, with a minimum period of confinement of eleven years, for involuntary
manslaughter and use of a deadly weapon. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Ash and the victim were engaged in an altercation. During the altercation, Ash shot the
victim in the chest and killed him. The State charged Ash with first degree murder. The parties
subsequently entered mediation during which Ash agreed to plead guilty to an amended charge of

1
involuntary manslaughter, I.C. § 18-4006(2), with a firearm enhancement, I.C. § 19-2520. In
addition, the State agreed to recommend a unified sentence of twenty-five years, with a minimum
period of confinement of eight years; Ash was free to argue for a lesser sentence.
At the outset of the sentencing hearing, Ash expressed concern that the State intended to
present evidence and argument to persuade the district court that he was guilty of first degree
murder despite the mediated resolution resulting in Ash’s guilty plea to involuntary manslaughter
with a firearm enhancement. Ash argued that any such efforts by the State would constitute a
breach of the plea agreement. Ash recognized the district court’s sentencing discretion but argued
the district court should “decline any invitation by the State to ignore the very real difference in
culpability between someone convicted of murder and someone convicted of involuntary
manslaughter” and require the State to limit its sentencing argument to its agreement--that Ash’s
conduct was “negligent, reckless, or careless.” Ash also asked the district court “to rule that [the
State] may not introduce evidence of elements that are not consistent with manslaughter,
specifically any arguments that [Ash] planned for this to happen” or that Ash had “malice” or “that
there was any kind of conspiracy.” The State responded that it intended to recommend the sentence
it agreed to as part of the mediation--twenty-five years, with a minimum period of confinement of
eight years--and that it was not planning to argue that Ash’s conduct amounted to anything other
than manslaughter. The district court ruled that “any kind of evidence or argument tending to
show that” Ash “committed an intentional or planned act” would “violate the spirit of [the] plea
agreement,” but evidence that shows Ash engaged in “a more reckless or more dangerous act” was
appropriate.
During the evidentiary portion of the sentencing hearing, the State presented testimony
from eight witnesses. Ash objected to testimony regarding whether he typically carried a gun as
he claimed after the shooting. The district court overruled the objection, explaining the evidence
was “relevant on the issue of recklessness and whether or not [it] was an inherently dangerous
situation, not for the purpose of an intentional killing.” In addition to witness testimony, the State
presented victim impact statements from the victim’s mother, brother, and stepfather. Following
the victim impact statements, the State presented argument and, consistent with the plea
agreement, asked the district court to impose a unified twenty-five-year sentence, with a minimum
period of confinement of eight years. The State argued that the “protection of society demands a
significant jail sentence” based on Ash’s recklessness. The State further argued that Ash’s lack of

2
insight, minimization, and victim-blaming illustrates poor rehabilitation potential. Finally, the
State argued that deterrence and retribution could be achieved by imposition of the recommended
sentence and that probation, which Ash intended to request, would be inadequate.
Ash then presented argument, an allocution, and recommended the district court impose a
suspended unified sentence of five years, with a minimum period of confinement of one year.
Next, the district court, with the consent of defense counsel, engaged in a short colloquy with Ash.
That colloquy included the following exchange:
[COURT]: In going through watching some of the videos and things like that,
you made a statement about quick draw practice. Did you make that
statement?
[ASH]: Yes, I did.
[COURT]: Is that something that you do?
[ASH]: It was something I did.
[COURT]: With that 44 magnum?[1]
....
[ASH]: If they would have actually looked at the gun, they would have
noticed things were filed down for quick draw purposes on that gun.
[COURT]: Do you practice quick drawing that from your hoodie pocket?[2]
[ASH]: I had a leather holster that was way too big and half the time
wouldn’t fit on my belt, so I would draw it out of the holster a lot of
times in my hoodie pocket.
[COURT]: I guess what I’m asking you is when you were practicing this quick
draw, were you practicing quick draw out of your hoodie pocket?
[ASH]: Basically, if I was wearing my hoodie.
[COURT]: But ordinarily that’s out of a holster that you had?
[ASH]: Yeah. The gun was a little oversized for the holster itself.
The district court also clarified that the gun Ash used was single action.
Before imposing sentence, the district court took a recess to review additional materials
and to “gather [its] thoughts” before “mak[ing] a decision.” After returning, the district court made
several comments explaining its consideration of the evidence and the objectives of sentencing,
including:
So the only thing I can reasonably conclude from all the evidence is that
[the victim] initiated the violent confrontation by punching you in the head. You
took it to the next level by pulling your gun. And at that point, the fact that someone

1
The 44 magnum the district court referred to is the gun Ash used to shoot the victim.
2
Some of the testimony at the sentencing hearing revealed differing views on whether Ash
was carrying the gun in a hoodie pocket or in his front pants pocket when he confronted the victim.

3
was going to get killed was probably inevitable. Do I believe that you planned this?
Absolutely not. But you set this all in motion. I think you said yourself it was
really a bad idea to go over there intoxicated with a gun in your pocket.
The district court later stated:
It is difficult for me to imagine a more serious involuntary manslaughter case under
any circumstance than this one and the way it happened. Am I telling you that you
went there with intent to do this? No. If I had concluded that, then probably this
plea agreement would have been blown up and a lot of different things may have
happened.
I’m convinced that you did not go there with the intent to kill [the victim].
I’m convinced that you didn’t plan to do that, there really was no malice. But it
was an incredibly reckless response to him hitting you in the head based on the
initial reckless decision to go over there drunk with a gun.
I have to try and consider perhaps your faculties were compromised because
of the intoxication. Perhaps you couldn’t accurately perceive events because of
your social awkwardness or your mental health challenges. But you’ve been around
guns for an awful long time. You’re familiar with them. What outweighs all of
that is the incredibly reckless decision that you made at the time. For someone as
experienced with firearms as you are, I think that makes you more culpable, despite
your intoxication. In fact, someone as experienced with firearms as you are, you
should have known better.
The district court concluded by imposing a unified sentence of twenty-one years, with a minimum
period of confinement of eleven years. Ash appeals.
II.
STANDARD OF REVIEW
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). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine
whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the
boundaries of such discretion; (3) acted consistently with any legal standards applicable to the
specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera,
164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
Ash argues that the district court abused its sentencing discretion for two reasons. First,
Ash argues that the district court “placed too much weight on aggravating factors related to malice
and intent to kill.” Second, Ash argues that the district court did not “adequately consider”

4
mitigating factors. The State responds that the district court properly exercised its sentencing
discretion. We hold that Ash has failed to show that the district court abused its sentencing
discretion.
We first address Ash’s argument that the district court “placed too much weight on
aggravating factors related to malice and intent to kill.” In support of his argument, Ash explains
the difference between first degree murder and involuntary manslaughter3 and then lists several
statements the district court made during sentencing that Ash contends reflect the district court’s
belief that Ash “acted deliberately.” Ash first cites the district court’s comments that Ash may
have killed the victim out of a sense of “betrayal” and contends that, by “highlighting” Ash’s
“supposed feelings of betrayal,” the district court indicated that “Ash had a deliberate intention to
take [the victim’s] life, which would be relevant to malice and an intent to kill.” Ash ignores the
context in which the district court commented on his sense of betrayal. In context, the district
court noted Ash’s potential sense of betrayal when the victim hit Ash immediately before he
responded by shooting the victim. That comment is not a reflection of an opinion on malice or
intent. Moreover, it is consistent with a central theme of Ash’s sentencing argument, which was
that, according to Ash, he went to the victim’s home in an effort to mend the friendship with the
victim because Ash did not have “very many friends” and “felt always a little bit like an outsider”
in the community. Ash has failed to show the district court’s comment about betrayal was
improper.
Ash next contends the district court “emphasized” that Ash pulled his gun in “haste” but
did not get the gun “hung up on [his] clothing.” Ash argues this reflects a suggestion by the district
court that he “acted deliberately in pulling the gun in haste, rather than acting recklessly or under
immediate threat.” Pulling a gun in “haste” suggests the opposite of deliberate action. It suggests
exactly what the district court repeatedly characterized Ash’s behavior as--reckless. Ash’s attempt
to equate reckless and deliberate “in the court’s mind” is contrary to the district court’s explicit
statement that it believed Ash acted recklessly, not intentionally, and is contrary to the plain-
meaning difference between those two words. See WEBSTER’S THIRD NEW INTERNATIONAL

3
Although not directly stated, based on his recitation of the difference between first degree
murder and involuntary manslaughter, it appears that Ash is arguing that giving too much weight
to “aggravating factors related to malice and an intent to kill” was improper since he pled guilty to
involuntary manslaughter rather than first degree murder.

5
DICTIONARY 1896, 596 (1993) (defining “reckless” as careless: “marked by a lack of caution” and
defining “deliberate” as “to ponder or think about with measured careful consideration and often
with formal discussion before reaching a decision or conclusion”). Ash has failed to show it was
improper for the district court to comment on the manner in which he drew his gun prior to shooting
the victim.
Finally, Ash cites the district court’s comments related to Ash’s culpability based on his
knowledge of and experience with a firearm and argues the district court’s reasoning “displays”
that it was “overly considering evidence tending to show malice and intent.” Beyond this
conclusory statement, Ash does not explain how the district court’s consideration of Ash’s
conduct, including taking a firearm to the victim’s home, especially while intoxicated,
demonstrates consideration of “malice and intent.” Indeed, there is no dispute that Ash intended
to take his gun with him or that he carried it, unholstered, in his pocket. Those undisputed facts
support the district court’s conclusion that Ash behaved recklessly, not that the district court
improperly considered malice and intent.
In short, the record does not support Ash’s assertion that the district court “overly
consider[ed] evidence tending to show malice and intent,” particularly since the district court
repeatedly characterized Ash’s conduct as reckless and repeatedly assured him, in response to his
objections, that it was well aware that Ash was being sentenced for involuntary manslaughter, not
murder. Even so, the district court had wide discretion to consider all of the evidence presented
and to view it in a manner the court deemed appropriate. See State v. Garcia, 166 Idaho 661, 681,
462 P.3d 1125, 1145 (2020) (explaining district court has discretion in weighing and determining
which evidence is aggravating and which is mitigating). Moreover, as the Idaho Supreme Court
has explained, the scope of information that can be presented to and considered by a court for
purposes of sentencing is broad:
There is no requirement that the State limit the information provided to the
sentencing court to the amount estimated as necessary to convince the court to
impose the recommended sentence. There should be no limitation placed on the
information presented to the court regarding the background, character, and
conduct of the defendant being sentenced . . . . Information that a sentencing court
can rely upon includes a defendant’s past criminal behavior that resulted in a
conviction, the defendant’s prior uncharged criminal conduct, and the defendant’s
prior conduct for which he was tried and acquitted. . . . Absent a provision in the
plea agreement expressly limiting the information that the State can present, it can
present any relevant information that could assist the court.

6
State v. Flowers, 150 Idaho 568, 573-74, 249 P.3d 367, 372-73 (2011) (citations omitted).
We next address Ash’s argument that the district court did not “adequately consider” the
mitigating factors, including his low risk for recidivism, employment history, mental health, family
support, remorse, and abstinence from alcohol since the shooting and that this was Ash’s first
felony conviction. As noted, it is within the district court’s discretion to weigh the evidence
presented. Our role is limited to determining whether reasonable minds could reach the same
conclusion as the district court. State v. Biggs, 168 Idaho 112, 116, 480 P.3d 150, 154 (Ct. App.
2020). 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).
The district court considered the objectives of sentencing (including the protection of
society, deterrence, rehabilitation, and retribution) and the mitigating and aggravating factors
pertinent to those objectives. Having reviewed the record in this case, we cannot say that the
district court abused its discretion. The district court identified the correct legal standards,
correctly perceived sentencing as a discretionary decision, acted within the boundaries of its
discretion, and exercised reason when imposing Ash’s sentence. Ash has failed to show the district
court abused its sentencing discretion.
IV.
CONCLUSION
Ash has failed to show the district court abused its discretion in sentencing him to a unified
term of twenty-one years, with a minimum period of confinement of eleven years, for involuntary
manslaughter and use of a deadly weapon. Therefore, Ash’s judgment of conviction and sentence
are affirmed.
Chief Judge GRATTON and Judge TRIBE, CONCUR.

7