State v. Otvos

2016 UT App 91
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
NIKOLAS A. O TVOS,
Appellant.
Per Curiam Decision
No. 20150464-CA
Filed May 5, 2016
Second District Court, Ogden Department
The Honorable Joseph Bean
No. 131900252
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
Before JUDGES S TEPHEN L. R OTH , M ICHELE M. C HRISTIANSEN , and
K ATE A. TOOMEY .
PER CURIAM:
¶1 	Nikolas A. Otvos appeals his sentence following his plea
of guilty and mentally ill (GAMI) to theft, a second degree
felony. Otvos claims that the district court plainly erred by
failing to find that he posed a danger to himself or others if he
was committed to prison and by failing to include a provision
for him to return to the Utah State Hospital if his condition
deteriorates. In the alternative, he argues that his trial counsel
was ineffective in failing to address these issues in the district
court. We affirm.
¶2 	“To prevail under plain error review, a defendant must
demonstrate that [1] an error exists; [2] the error should have
been obvious to the trial court; and [3] the error was harmful,

State v. Otvos
20150464-CA 	2 	2016 UT App 91
i.e., absent the error, there is a reasonable likelihood of a more
favorable outcome.” State v. Swogger, 2013 UT App 164, ¶ 2, 306
P.3d 840 (alterations in original) (citation and internal quotation
marks omitted). To demonstrate ineffective assistance of counsel,
a 	defendant 	must 	prove 	both 	deficient 	performance 	and
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
A defendant claiming ineffective assistance “bears the burden of
establishing prejudice as a demonstrable reality,” State v. McNeil,
2013 UT App 134, ¶ 30, 302 P.3d 844 (citations and internal
quotation marks omitted), aff’d, 2016 UT 3, 365 P.3d 699, and “the
likelihood of a different result must be substantial, not just
conceivable,” Menzies v. State, 2014 UT 40, ¶ 91, 344 P.3d 581
(alteration in original) (citation and internal quotation marks
omitted).
¶3 	Our review is limited to the district court’s sentencing
proceedings. The district court sentenced Otvos to the statutory
prison term for the offense and committed him to the custody of
the Utah Department of Human Services for admission to the
Utah State Hospital for care and treatment. See Utah Code Ann.
§ 77-16a-202 (LexisNexis 2012). Although Otvos claims he was
immediately transferred to the Utah State Prison, there is no
record 	before 	this court 	of the 	proceedings that 	may 	have
resulted in his transfer from the state hospital to the prison. See
id. § 77-16a-203 (providing for an offender’s transfer by the
department to the prison if the offender no longer has a mental
illness, or has a mental illness that can be adequately treated
while in prison, or has been stabilized to the point where
admission to the state hospital is no longer necessary “to ensure
adequate mental health treatment”).
¶4 	When sentencing a defendant after a GAMI plea, the
sentencing court shall first “impose any sentence that could be
imposed under law upon a defendant who does not have a
mental illness and who is convicted of the same offense.” Id.
§ 77-16a-104(3). 	The 	sentencing 	court 	must 	then 	determine

State v. Otvos
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whether to impose a sentence of probation or to commit the
offender to the state hospital or the state prison. See id. In order
to commit the defendant to the state hospital, the court must first
find, by clear and convincing evidence, that
(A) because of the defendant’s mental illness the
defendant poses an immediate physical danger to
self 	or 	others, 	including 	jeopardizing 	the
defendant’s 	own 	or 	others’ 	safety, 	health, 	or
welfare if placed in a correctional or probation
setting, or lacks the ability to provide the basic
necessities 	of 	life, 	such 	as 	food, 	clothing, 	and
shelter, if placed on probation; and
(B) the [Department of Human Services] is able to
provide 	the 	defendant 	with 	treatment, 	care,
custody 	and 	security 	that 	is 	adequate 	and
appropriate 	to 	the 	defendant’s 	conditions 	and
needs.
Id. § 77-16a-104(3)(a)(ii). If the sentencing court commits the
defendant 	to 	the 	state 	hospital, 	the 	court 	must 	order 	the
defendant to be committed there until transferred to the state
prison “in accordance with Sections 77-16a-203 and 77-16a-204,
making provision for readmission to the Utah State Hospital
whenever the requirements and conditions of Section 77-16a-204
are met.” Id. § 77-16a-202(1)(a). Section 77-16a-204 provides for
readmission to the state hospital if a mentally ill defendant’s
condition deteriorates. Id. § 77-16a-204(6).
¶5 	After his arrest, Otvos spent approximately two years in
the state hospital until the district court found he was competent
to proceed. Otvos then entered a GAMI plea. The district court
received a presentence investigation report (PSI) and two GAMI
evaluations. 	See 	id. 	§ 	77-16a-103 	(describing 	procedure 	for
determining whether a defendant currently has a mental illness).
The PSI recommended incarceration. Both GAMI evaluations

State v. Otvos
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indicated that Otvos currently suffered from a mental illness.
The State asked for a prison sentence and commitment to the
state hospital until Otvos could be transferred to the prison.
Defense 	counsel 	argued 	for 	probation 	with 	mental 	health
treatment. 	The 	district 	court 	imposed 	the 	statutory 	prison
sentence of one-to-fifteen years, then committed Otvos to the
state hospital until he became an appropriate candidate for
prison. The judge stated that this sentence would provide Otvos
with programming at the state hospital that would be beneficial
to him and also said that he did not know if Otvos would ever
spend a day at the prison.
¶6 	Otvos claims that the sentencing court plainly erred by
failing to make any provision for his readmission to the state
hospital. However, the sentencing order stated that Otvos was
“admitted to the Utah State Hospital for care and treatment until
transferred to the Utah Department of Corrections in accordance
with 	section 	77-16a-203 	and 	77-16a-204.” 	This 	incorporation
satisfied the requirement of section 77-16a-202(1)(a) that the
sentencing court make provision for readmission to the state
hospital. Accordingly, Otvos can demonstrate neither plain error
nor ineffectiveness of trial counsel as to this claim.
¶7 	Otvos also claims that the district court plainly erred by
not making an explicit finding that he posed an immediate
danger to himself or others if committed to prison.
[C]ommitment to the state hospital is an option
only if the court finds both that the defendant’s
mental 	illness 	causes 	“an 	immediate 	physical
danger to self or others, including jeopardizing the
defendant’s 	own 	or 	others’ 	safety, 	health, 	or
welfare if placed in a correctional setting,” and that
the 	state 	hospital 	is 	equipped 	to 	provide 	the
defendant with the appropriate “treatment, care,
custody, and security.”

State v. Otvos
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State v. Swogger, 2013 UT App 164, ¶ 7, 306 P.3d 840 (citation
omitted). The district court committed Otvos to the state hospital
and did not commit him to prison. Therefore, the district court
necessarily made the determination required by section 77-16a-
104(3). Absence of an explicit finding that Otvos posed an
immediate danger to himself or others did not prejudice him in
sentencing because he was committed to the state hospital. Even
assuming 	that 	the 	Department 	of 	Human 	Services 	later
transferred Otvos to prison, that decision would necessarily be
based on the department’s determination that, under the factors
listed in section 77-16a-203(3)(a), continued commitment to the
state hospital was not necessary. The claim that Otvos suffered
prejudice 	because 	the 	district 	court 	did 	not 	make 	explicit
findings 	regarding 	immediate 	danger 	because 	he 	was 	later
transferred to the prison by the Department of Human Services
is speculative. Because Otvos has not met his burden to establish
prejudice “as a demonstrable reality,” see State v. McNeil, 2013
UT App 134, ¶ 30, 302 P.3d 844 (citation and internal quotation
marks omitted), aff’d, 2016 UT 3, 365 P.3d 699, he has not shown
the prejudice necessary to succeed on either his claim of plain
error or of ineffective assistance of counsel.
¶8 	In his reply brief, Otvos argues that his “subsequent
transfer to the prison violated the court’s intended sentence,”
and that “[t]he fact that he ended up in prison so quickly
illustrates that the trial court may not have given the sentence it
intended.” 	These 	claims 	lack 	merit. 	The 	sentencing 	options
under the GAMI statutes were to place Otvos on probation and
release him into the community or to sentence him to the
statutory term and commit him to the state hospital until the
Department of Human Services determined that he was eligible
to be transferred to the prison. The district court imposed a
sentence that complied with the GAMI statutes. Otvos has not
demonstrated that the district court erred, let alone plainly erred,
in imposing a sentence that complied with the GAMI statutes, or

State v. Otvos
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that trial counsel was ineffective in addressing the sentencing
options.
¶9 	Accordingly, we affirm.