State v. Ott

2010 UT 1
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040638
Plaintiff and Appellee,
v.
F I L E D
Mark Anthony Ott,
Defendant and Appellant. 	January 5, 2010
---
Second District, Farmington
The Honorable Michael G. Allphin
No. 021701485
Attorneys: 	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:
INTRODUCTION
¶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.

No. 20040638 	2
BACKGROUND
¶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

1 Daniel had moved out of the house, and William and Carissa
were spending the night at Mr. Ott’s home.
2 By entering an Alford plea, a defendant does not admit
guilt. 	Rather, the defendant enters a guilty plea because he
recognizes that a prosecutor has enough evidence to obtain a
guilty verdict. 	In North Carolina v. Alford, Mr. Alford argued
that he was innocent of the murder charge but pled guilty to
second degree murder in an attempt to avoid the threat of a
sentence of death for first degree murder. 	400 U.S. 25, 28
(continued...)
3 	No. 20040638
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

2 (...continued)
(1970). 	The United States Supreme Court stated that “while most
pleas of guilty consist of both a waiver of trial and an express
admission of guilt, the latter element is not a constitutional
requisite to the imposition of criminal penalty.” 	Id. at 37.
The Court went on to hold that “[a]n individual accused of crime
may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable
to admit his participation in the acts constituting the crime.”
Id. 	The Court concluded that this type of plea would be
appropriate when “a defendant intelligently concludes that his
interests require entry of a guilty plea and the record before
the judge contains strong evidence of actual guilt.” 	Id.
No. 20040638 	4
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.

5 	No. 20040638
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).
STANDARD OF REVIEW
¶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.
ANALYSIS
I. 	THIS COURT LACKS JURISDICTION TO ADDRESS MR. OTT’S GUILTY
PLEA BECAUSE MR. OTT FAILED TO MOVE THE COURT TO WITHDRAW HIS
PLEA
¶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:

No. 20040638 	6
(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 a plea held
in abeyance, shall be made by motion before
sentence is announced. 	Sentence may not be
announced unless the motion is denied. 	For a
plea held in abeyance, a motion to withdraw
the plea shall be made within 30 days of
pleading guilty or no contest.
(c) Any challenge to a guilty plea not
made within the time period specified in
Subsection (2)(b) shall be pursued under
Title 78B, Chapter 9, Post-Conviction
Remedies Act, and Rule 65C, Utah Rules of
Civil Procedure.
¶18 	We have previously held that failure to withdraw a
guilty plea within the time frame dictated by section 77-13-6
deprives the trial court and appellate courts of jurisdiction to
review the validity of the plea. 	State v. Rhinehart, 2007 UT 61,
¶¶ 12-14, 167 P.3d 1046; see also Grimmett v. State, 2007 UT 11,
¶ 8, 152 P.3d 306 (“Utah Code section 77-13-6(2)(b) establishes
the filing limitations that govern a criminal defendant’s right
to withdraw a guilty plea. 	These filing limitations are
jurisdictional.”) 	“Section 77-13-6(2)(b) ‘imposes a
jurisdictional bar on late-filed motions to withdraw guilty
pleas,’ and failure to comply with its requirements ‘extinguishes
a defendant’s right to challenge the validity of the guilty plea
on appeal.’” 	Grimmett, 2007 UT 11, ¶ 8 (internal quotation marks
and citations omitted); State v. Merrill, 2005 UT 34, ¶¶ 13-20,
114 P.3d 585 (addressing jurisdictional nature of section 77-13-
6(2)(b) prior to significant 2003 amendment). 	In Rhinehart, we
further held that a defendant may not overcome a failure to
timely withdraw his guilty plea even if the failure is “styled as
a claim of ineffective assistance of counsel.” 	2007 UT 61, ¶ 14.
¶19 	Mr. Ott did not move to withdraw his guilty plea within
the time restrictions of section 77-13-6. 	He argues that this
court should disregard his failure to timely move to withdraw his
guilty plea because his guilty plea constitutes a misplea. 	We
stated in State v. Kay that a misplea may be granted

7 	No. 20040638
where obvious reversible error has been
committed in connection with the terms or the
acceptance of the plea agreement and no undue
prejudice to the defendant is apparent[,]
. . . . in situations where some fraud or
deception by one party leads to the
acceptance of the plea agreement[,] . . . .
[and] other circumstances where the balancing
of the interests and legitimate expectations
of the defendant and the public.
717 P.2d 1294, 1305 (Utah 1986), overruled on other grounds by
State v. Hoff, 814 P.2d 1119, 1123 (Utah 1991). 	Obvious
reversible error occurs when manifest necessity is present. 	Id.
at 1303.
¶20 	We decline to discuss whether Mr. Ott’s plea met the
requirements for a court to grant a misplea because we hold that
the misplea doctrine in Mr. Ott’s case cannot be used to
circumvent jurisdictional requirements. 	Furthermore, neither the
State nor Mr. Ott made any motion to the trial court that a
misplea occurred, a factor which is considered in cases that have
granted a misplea. 	See Id. at 1296-97; State v. Lopez, 2005 UT
App 496, ¶¶ 2-8, 14-27, 128 P.3d 1; State v. Bernert, 2004 UT App
321, ¶¶ 2-5, 7-12, 100 P.3d 221; State v. Horrocks, 2001 UT App
4, ¶¶ 2-7, 12-32, 17 P.3d 1145; State v. Moss, 921 P.2d 1021,
1022-27 (Utah Ct. App. 1996). 	The Utah Court of Appeals has
recognized that a trial court may sua sponte set aside a guilty
plea even after the time restrictions of section 77-13-6 have
expired. 	Lopez, 2005 UT App 496, ¶ 19. 	In this case, however,
the trial court never exercised this discretion. 	Moreover,
unlike the circumstance here, sentencing had not yet occurred in
Lopez. 	We therefore do not have jurisdiction to determine the
validity of Mr. Ott’s guilty plea.
II. 	MR. OTT’S COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO
OBJECT TO VICTIM IMPACT EVIDENCE, THEREBY PREJUDICING MR. OTT
¶21 	Mr. Ott argues his trial counsel was ineffective
because counsel failed to object to the admission of certain
victim impact evidence during his capital sentencing hearing.
Specifically, counsel did not challenge the admissibility of a
six-minute videotape featuring pictures of Lacey Lawrence set to
moving music, testimony from Lacey’s family members about the
devastating effect Lacey’s death had on them, and testimony from
Lacey’s family on their opinion of Mr. Ott’s character and the
appropriate sentence.

3 Mr. Ott has cited various provisions of the Utah
Constitution as possibly standing for the proposition that Utah
(continued...)
No. 20040638 	8
¶22 	“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. 	“To prove ineffective
assistance of counsel, defendant must show: 	(1) that counsel’s
performance was objectively deficient and (2) a reasonable
probability exists that but for the deficient conduct defendant
would have obtained a more favorable outcome at trial.” 	Id. 	“To
satisfy the first part of the test, defendant must overcome the
‘strong presumption that [his] trial counsel rendered adequate
assistance.’” 	Id. (quoting State v. Crosby, 927 P.2d 638, 644
(Utah 1996) (alterations in original).
¶23 	In State v. Carter, we questioned whether victim impact
evidence concerning a defendant’s blameworthiness was probative
and held that victim impact evidence was inadmissible in capital
sentencing. 	888 P.2d 629, 652-53 (Utah 1995), superseded by
statute, Utah Code Ann. § 76-3-207(2)(a)(iii) (1995) (“This
censure of victim impact evidence in capital cases applies to
evidence of the victim's character, evidence of the effects of
the crime on the surviving members of the family, and evidence of
the surviving members' opinions of the crime.”). 	In 1995, the
Legislature amended section 76-3-207 to expressly allow evidence
pertaining to “the victim and the impact of the crime on the
victim’s family and community without comparison to other persons
or victims,” in capital sentencing proceedings. 	Utah Code Ann.
§ 76-3-207(2)(a)(iii) (2008).
¶24 	Mr. Ott argues that regardless of the amendment to
section 76-3-207, his trial counsel should have argued that the
victim impact evidence presented by the State in his sentencing
proceeding was not admissible either because (1) section 76-3-
207(2)(a)(iii) is unconstitutional under the Utah Constitution,
or (2) that under Carter the evidence is inadmissible because it
is not probative. 	Mr. Ott also contends that his counsel
provided ineffective assistance for failing to object to portions
of the victim impact evidence that spoke to Mr. Ott’s character,
chances for his rehabilitation, and the appropriate penalty to be
imposed; all of which he insists violated the United States
Constitution. 	We do not address Mr. Ott’s first two arguments
today because we hold that portions of the impact evidence the
State introduced at Mr. Ott’s sentencing hearing violated the
Eighth Amendment of the United States Constitution, and that Mr.
Ott’s counsels’ failure to object to this evidence constitutes
ineffective assistance of counsel. 3

3 (...continued)
Code section 76-3-207(2)(a)(iii) is unconstitutional. 	In the
past we have declined to address the constitutionality of section
76-3-207(2)(a)(iii) because either the issue had not been briefed
or admission of the victim impact evidence constituted harmless
error. 	See State v. Arguelles, 2003 UT 1, ¶ 123 n.26, 63 P.3d
731; State v. Honie, 2002 UT 4, ¶ 61 n.7, 57 P.3d 977; State v.
Kell, 2002 UT 106, ¶¶ 52-54, 61 P.3d 1019. 	In Mr. Ott’s case, we
decline to address the constitutionality of section 76-3-
207(2)(a)(iii). 	We also do not address whether Mr. Ott’s counsel
was objectively deficient for failing to object to the “Meet
Lacey Lawrence” video. 	This court follows the primacy approach
and “looks first to state constitutional law, develops
independent doctrine and precedent, and decides federal questions
only when state law is not dispositive.” 	West v. Thomson
Newspapers, 872 P.2d 999, 1006 (Utah 1994) (internal quotation
marks omitted). 	We do not address the state constitutional
issues briefed by Mr. Ott because doing so may require us to find
section 76-3-207(2)(a)(iii) unconstitutional. 	Avoiding such an
outcome is an adequate reason to stray from the primacy approach
in this case. 	See State v. Briggs, 2008 UT 83, ¶ 26, 199 P.3d
935 (“[I]f the challenged state action violates the federal
Constitution, we need not reach the question of whether the Utah
Constitution provides additional protection; we may instead
resolve the case with reference only to the federal
Constitution.”)
9 	No. 20040638
A. 	Mr. Ott’s Counsel Was Objectively Deficient Because They
Failed to Object or to Attempt to Otherwise Exclude Portions of
the Victim Impact Evidence
¶25 	“To establish a claim of ineffectiveness based on an
oversight or misreading of law, a defendant bears the burden of
demonstrating why, on the basis of the law in effect at the time
of trial, his or her trial counsel’s performance was deficient.”
State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993). 	In Payne v.
Tennessee, the United States Supreme Court held that the Eighth
Amendment does not bar, per se, victim impact evidence, but
victim impact evidence may be inadmissible if the evidence is so
prejudicial that it makes sentencing fundamentally unfair under
the Due Process Clause. 	501 U.S. 808, 823, 827 (1991); see also
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“The relevant
question is whether the prosecutors’ comments ‘so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.’” (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). 	Payne overturned Booth v. Maryland, which
held the Eighth Amendment barred victim impact evidence. 	Payne,

No. 20040638 	10
501 U.S. at 830. 	However, to the extent Payne overruled Booth,
Booth retained viability for its holding that victim impact
evidence that addresses the defendant’s character or expresses
the victim’s opinion of the appropriate sentence at the penalty
phase of trial is inadmissible under the Eighth Amendment. 	Id.
at 830, n.2 (stating, Payne is limited to holding “that evidence
and argument relating to the victim and the impact of the
victim’s death on the victim’s family are inadmissible at a
capital sentencing hearing”); see also id. at 833 (O’Connor, J.
concurring) (stating, “we do not reach this issue as no evidence
of this kind was introduced at petitioner’s trial”); United
States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998) (stating,
“Payne did not overrule the prohibitions in Booth against the
admission of ‘information concerning a victim’s family members’
characterization of and opinions about the crime, the defendant,
and the appropriate sentence.’” (quoting Payne, 501 U.S. at 835
n.1 (Souter, J., concurring))).
¶26 	We hold that large portions of the victim impact
evidence introduced at Mr. Ott’s capital sentencing hearing
featured the victims’ opinions of the defendant’s character or
the appropriate sentence and were therefore clearly at odds with
United States Supreme Court precedent. 	Each victim was asked to
testify about how he or she would feel if Mr. Ott were to be
released in twenty years. 	Each expressed the opinion that Mr.
Ott could not be rehabilitated and the notion that he might ever
be released frightened them. 	We recount the relevant testimony
below. 	In order to provide context for the statements made, we
have quoted large portions of the testimony given at Mr. Ott’s
sentencing hearing. 	Although this testimony contains many
impermissible statements, we are not suggesting that every
statement quoted below is constitutionally inadmissible.
¶27 	Allen Lawrence, Lacey’s father, testified as follows:
Q. 	In giving you an opportunity at this
point to express your thoughts and feelings
to the jury about what you think they ought
to consider in imposing sentence on Mr. Ott,
what would you say?
A. 	Well, I think they need to take what
kind of guy this person is into
consideration. 	I mean, he’s shown his hand.
He’s shown what he truly is, the kind of man
he is . . . these types of crimes are
committed by certain types of people and he
just happens to be one of them. 	They are

11 	No. 20040638
psychopathic in nature. 	They have no
feelings for other people. 	They have no
respect for other people’s rights. 	No
respect for other people’s pursuit of
happiness. 	No respect for other people’s
feelings. 	They can kill and they don’t have
any more feeling for killing someone than if
they reached up and picked an apple off of a
tree. 	They don’t feel it. 	That’s the kind
of guy this is. 	I don’t think he’ll ever
change. 	I don’t think he should ever have
the opportunity to again perpetrate his
violent nature on any human being anywhere
again ever. 	He doesn’t deserve it. 	He’s
used up all his chances. 	He’s shown who he
is and what he does when he does not get his
way. 	He’s shown us. 	He showed his hand.
That’s what he is. 	That’s is [sic] the
defining moment of that man’s life. 	That
five minute episode defined him as what he
is. 	That’s what Mr. Ott is. 	That’s him.
Q. 	Based upon your personal experiences
with Mr. Ott . . . and what you observed and
perceived in the manner and fashion in which
he carried out the attack on you on Hawthorne
Drive, is it your perception that if he had
known Lacey was in that house would he have
escorted her out before setting that house on
fire?
A. 	I don’t think he would have done a
damn thing different. 	This man is a
terrorist. 	He deals with anarchist
cookbooks. 	He looks at how bombs are built.
When he set that house on fire this isn’t
like building a campfire with a grocery sack.
This is a bomb. 	If I dumped gallons of
gasoline on this floor right here and lit it
with a match, can you imagine how explosive
that would be? 	It goes up instantly. 	I’ve
thrown little bits of gas on a campfire to
start one. 	It flares up instantly. 	Can you
imagine that much gasoline in the
house? . . . He didn’t care. 	This guy does
not care about other people’s feelings. 	He
has no empathy for anybody, none. 	He doesn’t

No. 20040638 	12
have it. 	It’s not inside of his character to
have that.
¶28 	Donna Ott testified as follows:
Q. 	Assuming that Mr. Ott was given a
sentence of life with possibility of parole,
do you have any concerns about him getting
out of prison?
A. 	I think I should. 	As a matter of
fact, I do.
Q. 	Okay. 	What is that concern?
A. 	I know a lot of very healthy 60-
year-old men. 	I don’t see that things will
change much in 20 years. 	I believe that
he’ll come out and he will look for us.
Knock. 	Knock. 	Exactly right.
Q. 	So do you feel like he’d do this to
you again?
A. 	Exactly. 	Yes. 	Yes.
Q. 	You said that you don’t see him
changing. 	What is that based on?
A. 	The control freak. 	They don’t know
-- if they don’t get what they want, they
don’t know any other way but to threaten.
It’s a lifestyle. 	He doesn’t know how to
deal -- it’s how he lives his life.
¶29 	Sarah Gooch, Donna Ott’s daughter, responded to a
similar line of questioning as follows:
Q. 	Based upon your -- your knowledge
having lived with Mark Ott for those years,
experienced life in the home with Mark Ott,
and experienced the attack on September 1 st
of 2002 by Mark Ott, what if any concerns do
you have if Mark Ott is ever released from
prison?

13 	No. 20040638
A. 	I have a hard enough time sleeping
as it is. 	It’s a long time for somebody to
stir about how pissed off they are.
Q. 	What about his ability to change in
prison based upon what you know of him?
A. 	Mark’s been like -- his whole life,
ever since I’ve known him. 	How is he gonna
change?
Q. 	How will that impact you personally,
do you believe, if he’s ever released from
the Utah State Prison?
A. 	I don’t know. 	I –- I don’t know.
I’m terrified now. 	I’d hate to see how
scared I’d be if he was actually out.
¶30 	Lucy Gooch testified:
Q. 	After the event of that night, what
you’ve done, what you’ve gone through since,
do you have any – are you fearful of the
defendant?
A. 	Very much so.
Q. 	And do you have any fear if he would
be released from prison in 20 years or what
he might do?
A. 	I think that if we let him out, it
doesn’t matter how old he’s going to be, I
think that, you know, he’ll finish what he
went there to do. 	I honest to God I [sic]
feel that way.
¶31 	Amber Lawrence, Lacey’s sister, testified as follows:
Q. 	Amber, knowing what happened in the
home on September 1 st of 2002, in the Out
[sic] Home, and what happened to your little
sister, what are your thoughts and feelings
on how it would make you feel knowing that
the man that did this to your father and
sister might have the possibility of being
released from prison in 20-plus years.

No. 20040638 	14
A. 	Terrifies me. 	I don’t think that it
-- he wouldn’t -- he wouldn’t change. 	He
wouldn’t change at all. 	And I didn’t -- I
came here not knowing about not even a
portion of the things that have went on in
the jail, things that he had done. 	But I
mean, it scares me enough just sitting in
this courtroom with him knowing he has no
handcuffs on. 	That scares me enough. 	And I
don’t even want to think about how it would
be knowing he was going to get out in any
amount of time. 	I don’t see how anybody
could do what he did. 	But he did that today.
And I know that if it was up to him, my dad
wouldn’t be sitting here today. 	My dad would
not be here at all . . . But it could have
very well been me instead of my little
sister, or both of us.
Q. 	Amber, is there anything else you
want this jury to know? 	Any other thoughts
or feelings you have you want to make sure
they are --
A. 	I want them to know that Mark does
not care. 	He doesn’t care what happened that
night. 	He doesn’t care if it was me or my
sister or everybody in that house. 	He burned
it down. 	He didn’t help anybody out of it.
He didn’t try to pick out one person out of
five. 	He wanted just for us, my dad. 	He was
there for whoever and whatever was in that
house. 	I mean, the house could have caught
on fire to the next door neighbors. 	He
didn’t care who died. 	He didn’t care who got
hurt. 	I know his intention was to kill my
dad, but instead he killed my little sister.
And I don’t think he deserves anything more
than what she got. 	She can’t be here today
to say what she thinks. 	I don’t think that
he deserves any rights. 	He shouldn’t have
any rights. 	He took all of hers away from
her, and I don’t believe that he should have
any.
¶32 	Terry Cook, Lacey Lawrence’s mother, testified as
follows:

15 	No. 20040638
Q. 	. . . Do you have any feelings that
you would like to express as they relate to
the defendant and what should happen to the
defendant?
A. 	Yeah. 	I think he should have to
walk in my shoes. 	I think you should have to
walk in my shoes ‘cause my last two years
have been horrible. 	You know what? 	They are
not going to get better. 	I loved my
daughter. 	The love I had for my daughter was
so strong. 	You can’t take that away . . .
and I hate to say this, but I hope you don’t
get out on parole because you don’t deserve
it. 	My daughter don’t get to come back to me
right now. 	I didn’t get to finish with my
daughter’s life. 	I have to go home tonight
without my daughter there, and I have to be
alone for the rest of my life and be unhappy
for the rest of my life. 	I hope you can
think about that for the rest of your life.
¶33 	It is clear to us that the testimony offered at Mr.
Ott’s sentencing falls squarely within the categories of evidence
identified as inadmissible, in capital sentencing hearings, by
Payne and Booth. 	Mr. Ott’s counsel was objectively deficient for
failing to object to the offensive evidence.
¶34 	The State argues, however, that Mr. Ott’s counsel
deliberately chose not to object to the inadmissible evidence as
part of trial strategy. 	We find this argument to be without
merit. 	“Proving that his counsel’s performance fell below an
objective standard of reasonableness requires [Mr. Ott] to ‘rebut
the strong presumption that under the circumstances, the
challenged action might be considered sound trial strategy.’”
Taylor v. State, 2007 UT 12, ¶ 73, 156 P.3d 739 (quoting Carter
v. Galetka, 2001 UT 96, ¶ 40, 44 P.3d 626). 	We “‘will not review
counsel’s tactical decisions simply because another lawyer, e.g.,
appellate counsel, would have taken a different course.’”
Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994) (quoting State
v. Jones, 823 P.2d 1059, 1063 (Utah 1991)). 	Additionally,
“whenever there is ‘a legitimate exercise of professional
judgment in the choice of trial strategy, the fact that it did
not produce the expected result does not constitute
ineffectiveness of counsel.’” 	Id. (quoting State v. Bullock, 791
P.2d 155, 160 (Utah 1989)). 	In essence, the question is “[w]as
the failure to raise the objections before the trial court the
result of a consciously chosen strategy of trial counsel rather

No. 20040638 	16
than an oversight, and if it was a strategic decision, did the
making of that choice constitute ineffective assistance of
counsel?” 	Bullock, 791 P.2d at 158-59.
¶35 	We have previously analyzed whether trial counsels’
failure to object to victim testimony at trial is merely trial
strategy. 	Id. at 155. 	In Bullock, a child sexual abuse case,
the defendant argued his trial counsel was ineffective in failing
to argue that videotaped testimony of alleged child abuse victims
and expert testimony was inadmissible. 	Id. 	At trial, videotaped
testimony of four boys describing the alleged abuse was presented
to the jury, and the social worker to whom the boys first
disclosed the abuse was questioned at trial. 	Id. at 156. 	Among
other things, defense counsel did not object to the admissibility
of the out-of-court statements, the videotaping procedures, or
the expert witness’s testimony that the children were victims of
sexual abuse. 	Id. at 157-58.
¶36 	We found that allowing the jury to hear the videotaped
descriptions and the expert testimony and then cross-examining
the expert to attack the credibility of the children’s
accusations was defense counsels’ strategy. 	Id. at 160. 	Defense
counsel attempted to “attack the quality of the State’s evidence
in an effort to persuade the jury of the insufficiency of the
evidence to support a conviction.” 	Id. at 158. 	We held that
counsel in Bullock was not objectively deficient because “[w]hile
the evidence complained of may have been inadmissible, trial
counsel could reasonably conclude under these circumstances that
there was little chance of keeping the testimony of the children
out of evidence,” and that it was necessary to allow the expert
testimony of the social worker in order for defense counsel to
challenge the veracity of the expert’s techniques. 	Id. at 159.
We also took into account that defense counsels’ presentation of
defense experts and evidence of defendant’s good character and
reputation for truthfulness was consistent with a rational
defense strategy. 	Id. at 158.
¶37 	Mr. Ott’s counsels’ failure to object to the victim
impact evidence presented in this case cannot be construed to be
a component of any rational defense strategy. 	The State presents
us with what it views as one defense strategy that would include
tolerating the admission of prejudicial and inflammatory
inadmissible evidence: 	one that employed as its central features
avoiding the perception that Mr. Ott was “pushing Lacey aside”
while presenting Mr. Ott as a remorseful man who took
responsibility for his actions. 	The State argues that any
objection made to the victim impact evidence would minimize the
effect of this strategy.

17 	No. 20040638
¶38 	We conclude, however, that counsels’ overall strategy
was not just to avoid dishonoring Lacey’s death, but also to
present Mr. Ott as someone who could be rehabilitated and who
deserved the possibility of parole. 	In State v. Hovater, we
noted if “the evidence ha[s] no conceivable beneficial value to
[the defendant], the failure to object to it cannot be excused as
trial strategy.” 	914 P.2d 37, 42 (Utah 1996). 	Victim impact
testimony that portrayed Mr. Ott as a murderer who was motivated
by a desire to terrorize his victims and who is beyond
rehabilitation does not conceivably support Mr. Ott’s defense
under the State’s theory or any other that could be rationally
constructed.
¶39 	We note that avoidance of drawing the jury’s attention
to certain facts or over-emphasizing aspects of the facts is a
well recognized trial strategy. 	See State v. Harter, 2007 UT App
5, ¶ 16, 155 P.3d 116 (finding strategic decision in failure of
defense counsel to argue for curative jury instruction on
implication of defendant’s flight because defense counsel did not
want to emphasize the fact that defendant fled the scene of the
crime). 	In Mr. Ott’s case, however, tactical methods were
available to his counsel, which could have limited the type of
victim impact evidence admitted. 	For instance, Mr. Ott’s counsel
could have sought exclusion of the victim impact evidence about
Mr. Ott’s character through a motion in limine. 	A decision not
to object to the victim impact evidence, especially when the
evidence violated existing precedent prohibiting victims
expressing opinions about the sentence or the defendant’s
character, falls below the line of objective reason and therefore
amounts to ineffective assistance of counsel.
B. 	Mr. Ott’s Objectively Deficient Representation Prejudiced Mr.
Ott
¶40 	We also hold that Mr. Ott’s objectively deficient
representation prejudiced him. 	A defendant “is prejudiced by
counsel’s actions only if the result of the proceedings would
have been different absent the claimed deficiency.” 	State v.
Greuber, 2007 UT 50, ¶ 9, 165 P.3d 1185. 	“To show prejudice in
the ineffective assistance of counsel context, the defendant
bears the burden of proving that counsel’s errors ‘actually had
an adverse effect on the defense’ and that ‘there is a reasonable
probability that, but for counsel’s . . . errors, the result of
the proceeding would have been different.’” 	State v. Santana-
Ruiz, 2007 UT 34, ¶ 20 (quoting Strickland v. Washington, 466
U.S. 668, 693-94 (1994)). 	“‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”

4 The prejudice of victim impact evidence in Kell was
addressed under the prejudice prong of a plain error analysis.
We have previously held, however, that a prejudice analysis is
the same under both a plain error and ineffective assistance of
counsel framework. 	State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778
(“The prejudice test for ineffective assistance of counsel claims
is equivalent to the harmfulness test applied in assessing plain
error.”).
No. 20040638 	18
Taylor v. State, 2007 UT 12, ¶ 56, 156 P.3d 739 (quoting
Strickland, 466 U.S. at 694). 	“Because‘[s]ome errors will have
had a pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and some will
have had an isolated trivial effect,’ in determining the effect
of the error, we ‘consider the totality of the evidence before
the . . . jury.’” 	State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321
(alterations in original) (quoting Strickland 466 U.S. at 695-
96).
¶41 	In this case, the record discloses that there is a
reasonable probability that but for the admission of the victim
impact evidence that addressed Mr. Ott’s character and the
victims’ opinions of the appropriate sentence, Mr. Ott would have
received a more favorable sentence. 	The admission of the
evidence sufficiently undermines our confidence in Mr. Ott’s
sentence.
¶42 	In State v. Kell, we analyzed the prejudicial effect of
victim impact evidence. 	2002 UT 106, ¶¶ 52-54, 61 P.3d 1019. 4
Mr. Kell, already incarcerated for murder, was charged with the
aggravated murder of Mr. Blackmon, another inmate, and Mr. Kell
was convicted and sentenced to death. 	Id. ¶¶ 1-2. 	At the
penalty phase of the trial, the victim’s family testified about
the pain, devastation, and anguish the loss of the victim had
caused them. 	Id. ¶ 52 n.15. 	We concluded that the victim impact
evidence in Mr. Kell’s case was not prejudicial. 	In making that
determination, we emphasized that the family’s victim impact
testimony was “[not] particularly inflammatory,” “moderate in
tone, descriptive of the family’s loss and mourning but not
militant or angry,” and made “no effort to pressure the jury to
impose the death penalty.” 	Id. ¶¶ 53-54. 	Specifically, a
statement prepared by the victim’s family and read to the court
stated:
Concerning the penalty phase for this
individual, the family has an abiding
conviction that man’s laws were written for
the unjust and for evildoers. 	Therefore

19 	No. 20040638
whatever punishment is meted out by this
Court or this jury, whether it be the death
penalty or some other sentence, my family
will accept that ruling.
Id. ¶ 52 n.15.
¶43 	In concluding that the admission of the victim impact
evidence did not prejudice the defendant, and therefore did not
undermine our confidence in the outcome, we found it important to
note that the victims’ statements “did not ask for the death
penalty, but left the decision up to the jury in remarkably
neutral terms.” 	Id. ¶ 53. 	“In fact, the family specified that
they would respect any decision the jury made.” 	Id.
¶44 	The content of victim impact testimony in Mr. Ott’s
case is dramatically more inflammatory than the evidence admitted
in Kell. 	Here, the victim impact evidence comprised a large
portion of the total evidence presented. 	The testimony was angry
in tone, inflammatory in content and contained messages that Mr.
Ott was beyond rehabilitation. 	The existence of these factors,
especially considering that Mr. Ott’s counsel never uttered a
word objecting to the admission of the evidence, undermines our
confidence in the outcome.
¶45 	The State argues mitigation evidence presented by Mr.
Ott’s counsel ameliorates any prejudicial or inflammatory effect
the victim impact evidence had. 	Our caselaw addressing prejudice
under Strickland suggests that deficient counsel that leads to
the admission of inflammatory statements is not prejudicial if
other mitigating statements or evidence is presented. 	For
instance, in State v. Dunn we held that a defendant was not
prejudiced by his counsels’ failure to request a jury instruction
concerning uncorroborated witness testimony because the county
attorney had testified that the witness’s testimony was given in
exchange for a reduction in his own charge, the witness admitted
on the stand to be a pathological liar, and the judge instructed
the jury that they may disregard evidence they deemed incredible.
850 P.2d 1201, 1226-28 (Utah 1993). 	The ameliorating statements
mitigated any prejudicial effect the absence of an uncorroborated
witness jury instruction may have had on the outcome of Mr.
Dunn’s trial. 	Id.
¶46 	Mr. Ott’s case does not present an instance where the
mitigating evidence presented negates the prejudicial effect of
the unlawful victim impact evidence. 	The single question before
the jury was whether Mr. Ott should receive a sentence of life
with parole or life without parole. 	Implicit in a sentence of

No. 20040638 	20
life with the possibility of parole is a belief by the jury that
Mr. Ott could one day be rehabilitated and re-enter society.
Underlying the jury’s decision is the large amount of evidence
addressing Mr. Ott’s mental health, including any mood or
personality disorders.
¶47 	Dr. Egli, the prison psychiatrist who treated Mr. Ott,
testified that Mr. Ott was responding positively to medication.
Mr. Ott’s counsel also presented evidence of Mr. Ott’s tumultuous
childhood, war experience, and numerous psychiatric hospital
stays leading up to the night of the crime wherein he may have
been improperly medicated. 	While persuasive, this evidence does
not, in our judgment, neutralize in any meaningful way the
prejudicial effect that the characterization of Mr. Ott as a
murdering “terrorist” made by people who directly encountered Mr.
Ott on the night of the crime. 	That he was improving while
medicated in prison did nothing to mitigate the numerous
statements made that, once released, Mr. Ott would become
uncontrollable. 	In considering “‘the totality of the evidence
before the . . . jury,’” 	Hales, 2007 UT 14, ¶ 86 (quoting
Strickland, 466 U.S. at 695-96), we must conclude that counsels’
failure to object to the inadmissible evidence undermines
confidence in the outcome and therefore prejudiced Mr. Ott.
¶48 	We therefore remand to the trial court with
instructions to afford Mr. Ott a new sentencing hearing.
CONCLUSION
¶49 	The facts and issues presented by this case are very
complex. 	Although we first questioned whether Mr. Ott could
properly plead to aggravated murder, we are without jurisdiction
to address his guilty plea because his failure to move to
withdraw the plea is a jurisdictional bar on this court. 	Mr. Ott
brought several claims addressing his counsels’ ineffective
assistance. 	Today, we address only the argument that his counsel
provided ineffective assistance for failing to object to victim
impact evidence. 	Specifically, we hold that counsel was
objectively deficient for failing to object to victim impact
evidence that addressed Mr. Ott’s character, chances for
rehabilitation, and deserved sentence because such victim impact
evidence clearly violates the Eighth Amendment when introduced in
capital sentencing hearings. 	Counsels’ failure to object to this
evidence also prejudiced Mr. Ott such that the objectively
deficient counsel constitutes ineffective assistance of counsel.
We remand to the trial court for a new sentencing hearing
consistent with this opinion.

21 	No. 20040638
---
¶50 	Associate Chief Justice Durrant and Justice Wilkins
concur in Justice Nehring’s opinion.
---
DURHAM, Chief Justice, concurring:
¶51 	I concur fully in the analysis and result of the
majority opinion on the federal issue, but write separately to
note my concern at the failure to engage first with the state law
questions properly preserved and briefed. 	Structurally, I
believe this court should determine first whether state law has
been complied with before addressing claims that the federal
Constitution has been violated. 	West v. Thomson Newspapers, 872
P.2d 999, 1005-06 (Utah 1994) (adopting the primacy approach
wherein the court “looks first to state constitutional law,
develops independent doctrine and precedent, and decides federal
questions only when state law is not dispositive,” and thus
provides for a “consistent method” that accords “with the
original purpose of the federal system” (internal quotation marks
omitted)); see also State v. Briggs, 2008 UT 83, ¶ 52, 199 P.3d
935 (Durham, C.J., concurring) (“The failure to undertake
independent state analysis in cases where state law is argued
contributes to a paucity of precedent and the absence of an
independent and adequate state ground for our holding.”); State
v. Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106 (“[I]t is part of
the inherent logic of federalism that state law be interpreted
independently and prior to consideration of federal questions.”);
Jeffs v. Stubbs, 970 P.2d 1234, 1248 (Utah 1998) (“[W]hen a party
asserts claims under both the Utah and federal Constitutions,
this court ordinarily first determines the issue under the Utah
Constitution and only resorts to the federal Constitution if the
state constitution is not dispositive.”).
---
¶52 	Justice Parrish concurs in Chief Justice Durham’s
concurring opinion.