State v. Ott

Decision Date11 June 2010
Docket NumberNo. 20040638.,20040638.
Citation247 P.3d 344,647 Utah Adv. Rep. 19,2010 UT 1
PartiesSTATE of Utah, Plaintiff and Appellee,v.Mark Anthony OTT, Defendant and Appellant.
CourtUtah Supreme Court


Mark L. Shurtleff, Att'y Gen., Laura B. DuPaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.Elizabeth Hunt, Salt Lake City, for defendant.NEHRING, Justice:


¶ 1 This case comes to us on direct appeal from Mark Ott's sentencing for aggravated murder and other charges. On one horrific night in the summer of 2002, Mr. Ott broke into the home of his wife, Donna Ott, who had recently filed for divorce. Knife in hand, Mr. Ott attacked Mrs. Ott's boyfriend, Allen Lawrence. He also stabbed his stepdaughter, Sarah Gooch. Mr. Ott then set the house on fire. All of the residents of the house escaped except Lacey Lawrence, Mr. Lawrence's six-year-old daughter, who died in the fire. Mr. Ott eventually entered an Alford plea of guilty to aggravated murder in connection with Lacey's death and pled guilty to other charges. He was sentenced by a jury to life in prison without the possibility of parole. In Mr. Ott's direct appeal, he argues over the legality of his plea as well as various instances of ineffective assistance. We hold that Mr. Ott's counsel provided ineffective assistance because counsel failed to object to portions of the victim impact evidence.


¶ 2 Mr. Ott married Donna Ott in 1996. Mrs. Ott had three children from a previous marriage (Daniel, Sarah, and Lucy), and had two more after her marriage to Mr. Ott (Carissa and William). Over the years, marital and family problems increased, and Mrs. Ott eventually separated from Mr. Ott and filed for divorce. A month after their separation, Mrs. Ott met Allen Lawrence and they began to date. Mr. Ott disapproved of Mrs. Ott's relationship with Mr. Lawrence and verbally and physically threatened the two of them on several occasions.

¶ 3 On the night of the fire, Mrs. Ott was awakened by her dogs barking. She went to the window to check on them and saw Mr. Ott in the backyard. She then ran to Mr. Lawrence, who was asleep in her bed, and attempted to wake him. Meanwhile, Mr. Ott broke into the house, entered Mrs. Ott's bedroom, and began to stab Mr. Lawrence. Mrs. Ott's daughter, Sarah, attempted to stop Mr. Ott from stabbing Mr. Lawrence by jumping on Mr. Ott's back and hitting his head with a can of mace. Mr. Ott then stabbed Sarah in her abdomen. During the attack, Mrs. Ott attempted to call the police but was unsuccessful because the phone line had been cut.

¶ 4 Despite his wounds, Mr. Lawrence was able to escape the bedroom and make his way to the front door. Mr. Ott followed Mr. Lawrence and continued to stab him. At some point, the knife broke and Mr. Ott was distracted by Mrs. Ott who had been watching the attack from the hallway. Mr. Ott said to Mrs. Ott, “Now look what you've made me do. Are you happy now?” He then approached Mrs. Ott and embraced her from behind. At that point, Lucy came upstairs from her bedroom in the basement, saw Mr. Ott, screamed, and ran back downstairs. Then, either while Mr. Ott held Mrs. Ott or shortly after, Sarah came from the bedroom and helped Mr. Lawrence out the front door. Sarah and Mr. Lawrence ran down the street and hid behind a fence.

¶ 5 Meanwhile, Mr. Ott went out the back door. Mr. Ott re-entered the home and poured gasoline, which he had obtained from the garage, on Mrs. Ott's bed. Mr. Ott then went downstairs, lit a sofa and a loveseat on fire, and told Mrs. Ott to get everyone out of the house. Seeing the fire, Mrs. Ott yelled for her daughter, Lucy, and Lucy's friend, Hillary, who was spending the night. She found the girls in the basement, and they safely exited the house. Mrs. Ott confirmed that her children were safely out of the house by conducting a head count, but she forgot to confirm the whereabouts of Lacey.1 Lacey was Mr. Lawrence's six-year-old daughter, and she was spending the night in Carissa's room on the main floor of the house. Mrs. Ott then observed Mr. Ott leaving the scene in her vehicle.

¶ 6 Just as Mr. Ott drove away, Mrs. Ott remembered that Lacey was still in the house. She ran back to the burning house and attempted to enter it, but was prevented from doing so by a police officer. Firefighters found Lacey inside a bedroom, dead from carbon monoxide poisoning.

¶ 7 Mr. Ott was charged with aggravated murder as a capital felony. The State also charged him with aggravated arson, aggravated burglary, aggravated assault, theft, attempted aggravated murder, and violation of a protective order. Mr. Ott maintained that he never knew Lacey was in the house, though he admitted starting the fire that killed her. Mr. Ott moved to quash his bindover on the charge of aggravated murder. He argued that he could not have intentionally and knowingly killed Lacey because he did not know she was in the house. Mr. Ott further argued that his intent to kill Mr. Lawrence with a knife was different from his intent to burn the house down.

¶ 8 The State argued that transferred intent and concurrent intent, also known as the “kill zone” theory, sufficed to sustain charges of aggravated murder. The district court rejected as too tenuous the State's theory that Mr. Ott's intent to kill Mr. Lawrence could be transferred and treated as the intent to kill Lacey. Nevertheless, the district court held that the magistrate, in ordering the bindover, had implicitly found that Mr. Ott harbored an intent to kill Mrs. Ott in the fire and that this intent transferred to Lacey.

¶ 9 Mr. Ott petitioned unsuccessfully for interlocutory review of the district court's order. A plea bargain was arranged, and Mr. Ott entered an Alford plea 2 to the aggravated murder charge and guilty pleas to the other charges in exchange for the State's agreement not to pursue the death penalty in his capital sentencing hearing and to drop several charges.

¶ 10 At the capital sentencing hearing, the jurors heard testimony from various individuals. Ten of the twelve jurors voted to sentence Mr. Ott to life in prison without the possibility of parole. The district court then imposed the statutory prison terms for each of the other charges and ordered them to run consecutively to each other and to the life without parole sentence.

¶ 11 Mr. Ott's case next came to us on direct appeal where the central issue was Mr. Ott's claim that his attorneys were ineffective. We ordered that the case be temporarily remanded to the district court for discovery pursuant to rule 23B of the Utah Rules of Appellate Procedure. At the conclusion of the hearings, the district court entered findings that no conflict of interest existed and that Mr. Ott's counsel was not ineffective. The record was returned to us for final action on Mr. Ott's direct appeal.

¶ 12 After hearing oral arguments and reviewing the parties' briefs and the record, we asked for supplemental briefing on the issue of whether Mr. Ott's Alford plea to aggravated murder could satisfy the elements of Utah Code section 76–5–202 (2008). We were concerned that Mr. Ott's Alford plea was defective as a matter of law because of the statutory requirement that to be guilty of aggravated murder a defendant must knowingly and intentionally kill the victim.

¶ 13 This appeal will address (1) whether Mr. Ott's plea was defective as a matter of law and (2) whether Mr. Ott's representation constitutes ineffective assistance of counsel. Because we hold that Mr. Ott's counsel was objectively deficient for failing to object to portions of the victim impact evidence introduced by the prosecution, and that this failure prejudiced Mr. Ott, we do not address the rest of Mr. Ott's ineffective assistance claims. See State v. Carter, 776 P.2d 886, 889 (Utah 1989) (overruled on other grounds) (noting court's ability “to expeditiously focus judicial resources and energy on those critical or outcome-determinative issues which may be raised in any given case and/or which have not in substance been previously urged upon this Court and rejected”). We have jurisdiction over this appeal pursuant to Utah Code section 78A–3–102(3)(j) (2008).


¶ 14 We will address the following two issues on appeal: (1) whether Mr. Ott's guilty plea was proper and (2) whether Mr. Ott's counsel was ineffective.

¶ 15 First, attempts to withdraw a guilty plea invite multiple standards of review. State v. Beckstead, 2006 UT 42, ¶ 7, 140 P.3d 1288. As an initial matter, we note “an attempt to withdraw a guilty plea on appeal must be preceded by a motion before the district court.” State v. Rhinehart, 2007 UT 61, ¶ 2, 167 P.3d 1046.

¶ 16 Second, some of Mr. Ott's claims of ineffective assistance of counsel are raised for the first time on appeal and some have been addressed by the trial court in the 23B hearing, both categories bearing different standards of review. Mr. Ott's ineffective assistance claim relating to counsels' failure to object to the victim impact evidence was not a part of his 23B hearing. Because we decide this case on a claim of ineffective assistance of counsel that is presented for the first time on appeal, we need only describe one appropriate standard of review. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.


¶ 17 Utah Code section 77–13–6 (2008) governs the withdrawal of guilty pleas, including the Alford plea in Mr. Ott's case. Section 77–13–6 states:

(1) A plea of not guilty may be withdrawn at any time prior to conviction.

(2)(a) A plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made.

(b) A request to withdraw a plea of guilty or no contest, except for...

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