Landry v. State

2016 UT App 164
THE UTAH C OURT OF APPEALS
HERBERT LANDRY,
Appellant,
v.
STATE OF UTAH ,
Appellee.
Opinion
No. 20140638-CA
Filed July 29, 2016
Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 100402172
Cory A. Talbot and M. Benjamin Machlis, Attorneys
for Appellant
Sean D. Reyes and Erin Riley, Attorneys for Appellee
J UDGE G REGORY K. ORME authored this Opinion, in which J UDGE
MICHELE M. C HRISTIANSEN and S ENIOR J UDGE P AMELA T.
G REENWOOD concurred.1
ORME, Judge:
¶1 	Herbert 	Landry 	appeals 	the 	district 	court’s 	order
dismissing 	his 	petition 	for 	postconviction 	relief 	from 	his
conviction for one count of aggravated arson. Landry’s theory is
one of layered ineffective assistance of counsel. He alleges that he
received ineffective assistance from his appellate counsel in his
direct appeal when appellate counsel failed to raise the issue of
ineffective assistance rendered by his trial counsel. Landry asserts
that trial counsel rendered ineffective assistance by failing to
object to the State’s use of testimony about an accelerant-detection
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

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20140638-CA 	2 	2016 UT App 164
canine’s alerts at the scene of the fire and on items of his clothing
and by failing to consult with an arson expert or to call an expert
witness to refute the State’s arson experts. We conclude that such
failings, 	taken 	together, 	constitute 	prejudicial 	ineffective
assistance. 	Thus, 	we 	reverse 	the 	district 	court’s 	contrary
disposition and remand for a new trial or the fashioning of such
relief as is appropriate under the circumstances. See Utah Code
Ann. § 78B-9-108(1)(b) (LexisNexis 2012).
BACKGROUND
¶2 	The salient facts were developed in an evidentiary hearing
on Landry’s postconviction petition, and we take the district
court’s findings of fact as our starting point. We also rely on our
prior decisions in Landry’s unsuccessful direct appeal, State v.
Landry, 2008 UT App 461U, and his successful appeal from the
district 	court’s 	denial 	of 	an 	evidentiary 	hearing 	on 	his
postconviction petition, Landry v. State, 2012 UT App 350, 293 P.3d
1092, as well as the record from Landry’s original trial.
¶3 	Landry moved into an apartment complex in Provo, Utah,
in September 2005. From September 2005 until he was evicted
from his apartment in February 2006, he split his time between
Provo and Texas, where his family lived. Landry arranged to
vacate his apartment on February 26, 2006, and to conduct a final
walk-through inspection with the apartment complex manager at
9:00 p.m. that evening.
¶4 	On the day of the scheduled inspection, Landry and his
girlfriend 	were 	in 	his 	bedroom, 	packing. 	While 	there, 	his
girlfriend sat on the edge of the bed and smoked a cigarette. In the
afternoon, the two left, apparently intending to return. Some of
Landry’s belongings remained behind, including clothes, some
small furniture items, a mattress, floor coverings, and a suitcase
that contained clothes, prescription medications, and financial
documents. Neighbors saw the pair leave in a hurry. Some five to

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20140638-CA 	3 	2016 UT App 164
ten minutes later, around 4:30 p.m., the same neighbors observed
smoke coming from Landry’s apartment and called 911 to report
a fire. Around this same time, another neighbor observed an
unidentified man outside Landry’s apartment. Fire investigators
were unable to locate that individual, but they did find a
discarded lighter nearby.
¶5 	During their investigation of the fire, police used a certified
accelerant-detection 	canine 	named 	Oscar. 	Oscar 	alerted 	his
handler to possible ignitable substances on the floorboards in
three places in Landry’s bedroom, and investigators determined
the bedroom to be the point of the fire’s origin. Investigators then
sent samples from each of those three locations to the crime lab.
The crime lab concluded that heptane was the only ignitable
substance that could be present on the floorboard samples.
According to the district court’s findings, heptane is an ingredient
in “a common construction adhesive that is often used to glue
carpet down and to glue the components of a sub-floor,” and at
trial the State conceded that heptane was not the cause of the fire.
Oscar was also taken to the motel room where Landry had moved
many of his belongings. Oscar alerted to one of Landry’s socks
and one of his shoes. The crime lab subsequently tested Landry’s
clothing, including the shoe and sock, and found no ignitable
substances.
¶6 	In addition to Oscar’s alerts, investigators identified a
distinct v-pattern on the floor of Landry’s bedroom, which
indicated, as one investigator testified at trial, that this was “an
intentionally set fire from the ignition of ignitable poured liquid.”
Police interviewed Landry, who did not attempt to explain the
cause of the fire or express concern about the possessions left in
his bedroom. Landry agreed during the interview that the fire was
likely not due to accidental electrical or chemical causes. He
denied smelling smoke or other odors consistent with fire at the
time he left the apartment with his girlfriend. He also said there
were no tobacco products or other smoking materials in his
bedroom. Following its investigation, the State charged Landry

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with aggravated arson, a first degree felony. See Utah Code Ann.
§ 76-6-103(2) (LexisNexis 2012).
¶7 	During the ensuing two-day jury trial, the State’s case
included testimony regarding Oscar’s training and the meaning
of his alerts as well as expert testimony regarding the cause and
origin of the fire. First, Oscar’s handler, himself a fire investigator,
testified that Oscar was trained to “find[] ignitable liquids, the
typical type of liquid that you’d find in . . . a hardware store, for
instance, kerosene, Coleman fuel, lighter fluid, charcoal lighter
gasoline is the most common type of accelerant[] that he’s trained
on, kerosene.” But Oscar was not trained to alert to alcohol. On
direct examination, when asked if “the fact that Oscar [alerted] on
an odor necessarily means that there’s an ignitable liquid there,”
the handler replied that “[t]here are times when he’s alerted and
it comes back not identifiable hydrocarbon.”2 But on cross-
examination the handler testified that when the lab determines a
sample 	contains 	no 	identifiable 	hydrocarbon, 	“[i]t 	doesn’t
necessarily mean there is nothing there, there may . . . have been
but they couldn’t identify what it was.” And according to the
district 	court 	on 	remand, 	Landry’s 	trial 	counsel 	“elicited
testimony” from the handler “that a general rule of thumb is that
the error rate is probably in the range of 10%.” During his trial
testimony, the Provo City fire marshal stated, “[T]he dog is much
2. “In the field of arson and fire investigations, combustible
vapors or vapors resulting from accelerants and ignitable liquid
residues 	are 	often 	referred 	to 	as 	‘Hydrocarbons.’ 	These
hydrocarbons are a by-product of the original petroleum based
material that may have been used as the original ignitable liquid
residue used to start the incendiary fire (e.g., gasoline, kerosene).”
Matthew D. Baldwin, Practical Applications of Hydrocarbon and
Photoionization Detection Units in Arson Investigations, Crime Scene
Investigator Network (Feb. 25, 2015), http://www.crime-scene-
investigator.net/practical-applications-of-hydrocarbon-and-
photoionization-detection-units-in-arson-investigations.html
[https://perma.cc/3RWQ-LW7K].

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20140638-CA 	5 	2016 UT App 164
more sensitive than some of the scientific equipment that we use.”
The district court later found that “[f]ar from accepting the Crime
Lab’s findings, the State used them instead to bolster the evidence
regarding Oscar’s alerts,” pointing to the Provo fire marshal’s
testimony in particular.
¶8 	At trial, the State also put on expert testimony from the
Orem City and Provo fire marshals regarding the origin and cause
of the fire. The Orem fire marshal testified that the fire “beg[a]n at
the floor level” and that the burn marks created a v-pattern, which
he explained occurs when combustion materials separate from the
air around them and which directed the investigators to what they
believed was the point of origin. He testified that “the patterns on
the floor were indicative of a poured or flowing liquid that had
been on the floor and ignited[,] causing increased damage in the
specific areas on the floor consistent with ignitable poured
liquid.” Despite conceding that he found no accelerants or
ignitable liquids in Landry’s bedroom, the Orem fire marshal
persisted in testifying that “this was an intentionally set fire that
occurred from the ignition of ignitable poured liquid.” He also
refuted a defense theory advanced by trial counsel—that a lit
cigarette that inadvertently came into contact with spilled alcohol
could have caused the fire—by pointing to Landry’s denial that
smoking materials were in his bedroom and his failure to mention
spilled alcohol during his initial interview with investigators and
by saying that he believed there would have been an explosion
that was visible to witnesses if that had been the cause. The Provo
fire marshal also testified that the patterns on a piece of subfloor
introduced into evidence resulted from “an ignitable liquid that
was poured or otherwise distributed” on Landry’s bedroom floor.
¶9 	Landry’s trial counsel called no witnesses to refute the
State’s experts’ testimony regarding the investigation methods
and the cause and origin of the fire. Trial counsel instead
defended Landry by suggesting that Landry did not set the fire—
at least not intentionally. In support of the theory that the fire was
an accident, Landry testified that he hosted a party in his

Landry v. State
20140638-CA 	6 	2016 UT App 164
apartment the night before the fire and that alcohol was spilled in
the general area where the experts testified that the fire had
started. This was the first time that Landry mentioned anything
about a party or spilled alcohol. He further testified, contradicting
his pretrial statements to investigators, that his girlfriend was
smoking on the bed shortly before the fire started. Again, this was
the first time Landry had mentioned this fact. And when asked on
cross-examination for specific details about the party and his
girlfriend, Landry could provide none—not even his girlfriend’s
last name. But apparently hoping to plant the seed of reasonable
doubt, trial counsel suggested in her closing argument that the
cigarette could have fallen into the alcohol or onto the bed and
started the fire.
¶10 	In support of the defense theory that whatever the cause of
the fire, Landry was not it, trial counsel also called a neighbor who
testified that around four o’clock on the afternoon of the fire he
heard a knock, apparently on Landry’s door, and then saw a man
who was “[k]ind of tall, narrow, had glasses, goatee, shaggy
beard” and wearing “dark clothes, dark hat,” and whom the
neighbor previously had seen “around.” Ten minutes later the
neighbor saw that cardboard used as Landry’s temporary front
window had been pushed in. And at 4:30, he saw the fire. Police
never located the unidentified man. Hoping to create a reasonable
doubt in the mind of the jury, trial counsel suggested in closing
argument that the unidentified man may well have started the
fire.
¶11 	And at least some doubt apparently existed in the jurors’
minds. After closing arguments, the jury deliberated for several
hours and was at one point deadlocked. State v. Landry, 2008 UT
App 461U, para. 3 n.1. After the jury informed the trial court of
the deadlock, the court explained that the jury would have to
return and continue deliberations the following day. When faced,
however, with the prospect of having to return the next day to
continue 	their 	deliberations—potentially 	extending 	the 	trial,
which was initially scheduled for two days, to an unexpected

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20140638-CA 	7 	2016 UT App 164
third day and causing at least one juror a hardship—the jurors
asked for the opportunity to reconvene briefly that night. Only
then did they reach a consensus and return a guilty verdict.
¶12 	Landry appealed his conviction, and on direct appeal,
appellate counsel argued “that there was insufficient evidence to
convict [Landry] of the crime charged.” Id. para. 1. This court
affirmed. Id. Landry then filed the instant petition for relief under
the Post-Conviction Remedies Act (PCRA), Utah Code Ann. §§
78B-9-101 to -405 (LexisNexis 2012), raising a number of theories,
including ineffective assistance of appellate counsel. See Landry v.
State, 2012 UT App 350, ¶¶ 1, 4–5, 293 P.3d 1092. Landry’s
postconviction petition asserted that his appellate counsel was
ineffective for her failure to raise trial counsel’s ineffectiveness as
an issue on direct appeal. Id. ¶ 1. The State moved to dismiss the
postconviction petition, and the district court granted the State’s
motion. Id. ¶ 5. On appeal, “[w]e reverse[d] and remand[ed] for
an evidentiary hearing . . . on the limited issue of whether
appellate counsel was ineffective when [she] did not raise on
direct appeal the ineffective assistance of trial counsel.” Id. ¶ 1. We
affirmed as to Landry’s other postconviction issues. Id.
¶13 	The district court held the required evidentiary hearing.
Landry presented testimony from trial and appellate counsel, and
both Landry and the State presented expert testimony assessing
the expert testimony from his trial as well as addressing the likely
cause of the fire.
¶14 	Trial counsel testified in a deposition, the recording of
which was played during the evidentiary hearing, that although
she had “been to CLEs that touched on arson,” she did not recall
participating in any other arson cases and did not “have any
personal training in arson.” Despite her inexperience, trial counsel
consulted only the Provo fire marshal, who was the State’s expert
and who would later testify on behalf of the State. Moreover, she
admitted that she “didn’t rebut their expert testimony at trial” or
present 	any 	evidence 	supporting 	a 	nonarson 	theory. 	She

Landry v. State
20140638-CA 	8 	2016 UT App 164
acknowledged that her defense strategy rested on the possibility
that a lit cigarette could have fallen into spilled alcohol and started
the fire, or alternatively, that an unidentified man may have
started the fire. Trial counsel also stated that it did not occur to
her 	to 	challenge 	the 	testimony 	regarding 	Oscar’s 	alerts 	as
improper expert testimony, or to its “coming in at all.”
¶15 	Landry elicited testimony that appellate counsel, like trial
counsel, did not consider it problematic that trial counsel relied
exclusively on consultation with the State’s expert witness and
did 	not 	consult 	an 	independent 	arson 	expert. 	Furthermore,
appellate counsel testified that she did not review State v. Schultz,
2002 UT App 366, ¶¶ 26–29, 39, 58 P.3d 879 (limiting the
admissibility of accelerant detection canine alerts), as a part of her
preparation, even though the State cited the decision in its brief
on appeal. She did, however, testify that if she had reviewed
Schultz, she would have argued plain error, ineffective assistance
of trial counsel, and that the State’s introduction of Oscar’s alerts
as substantive evidence was improper under Schultz.3
3. In 	its 	conclusions 	of 	law, 	the 	district 	court 	disregarded
counsel’s testimony that she overlooked State v. Schultz, 2002 UT
App 366, 58 P.3d 879, because the court concluded that Oscar’s
alerts 	were 	not 	substantive 	evidence 	of 	the 	presence 	of
accelerants. But when Oscar’s handler testified to the presence of
accelerant on Landry’s sock and shoe even though the laboratory
had not corroborated those alerts, he was citing Oscar as the
source of the evidence without satisfying the test for expert
testimony—a conclusion that the State does not refute. We
conclude that the handler’s testimony regarding Oscar’s alerts
was substantive evidence—all the more so given the Provo fire
marshal’s contention that Oscar was more “sensitive” than some
scientific equipment and the district court’s characterization of the
crime lab results as being used “to bolster the evidence regarding
Oscar’s alerts.” See supra ¶ 7.

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20140638-CA 	9 	2016 UT App 164
¶16 	Also during the evidentiary hearing on remand, Landry
and the State relied on arson experts, who prepared reports and
testified. The State’s expert said the fire was properly classified as
arson, while Landry’s expert concluded that the fire could not
definitely be classified as arson and instead should have been
classified as of “undetermined origin.” The experts focused much
of their testimony on whether the fire investigators properly
conducted the investigation. Based on their testimony, the district
court found that it was unclear whether the investigators used the
fire-investigation guide NFPA 9214 in investigating this particular
fire, which guide both experts relied upon as authoritative in their
own reports. The experts also agreed, the court found, that “the
[S]tate’s original fire investigators made a mistake when they
concluded that fire patterns on the floor definitely indicated a
pour pattern for ignitable liquids.”
¶17 	The State’s expert believed the v-pattern could have been
from poured ignitable fluid, but he indicated that conclusion
could not be substantiated because the fire was characterized by
“full room involvement.” The district court found that Landry’s
expert was similarly unwilling to rule out the possibility that the
fire started because of ignitable liquids, but he believed any such
liquids were on the mattress, not the floor. Landry’s expert
testified that the mattress was the “first fuel ignited in this fire”
4. The NFPA 921 is a guide for “scientific-based investigation and
analysis of fire and explosion incidents . . . [and] the foremost
guide for rendering accurate opinions as to incident origin, cause,
responsibility, and prevention.” NFPA 921: Guide for Fire and
Explosion 	Investigations, 	National 	Fire 	Protection 	Association,
http://www.nfpa.org/codes-and-standards/all-codes-and-
standards/list-of-codes-and-standards?mode=code&code=921
[https://perma.cc/FNR5-DZWQ]. It is used in the field and by
courts. Id. The experts who testified in the evidentiary hearing on
remand both agreed NFPA 921 is a leading guide for arson
investigators.

Landry v. State
20140638-CA 	10 	2016 UT App 164
and pointed to the common role cigarettes play in starting home
fires as a potential cause.
¶18 	The district court further found that the experts disagreed
about whether the original investigators properly conducted their
investigation. According to the court’s findings, Landry’s expert
first said the investigators failed to identify the arrangement of the
bedroom, did not consider “target and secondary fuels,” did not
“identif[y] the volume or fire load,” and “failed to identify [the]
type or heat release rate” of each of the fuels present in the room.
The State’s expert disagreed with each of these conclusions.
Regarding the heat release rate, the State’s expert acknowledged
that there was no documented proof that the State’s trial experts
considered the heat release rates, but he opined that they still
could have considered them. Landry’s expert also said the
investigation was flawed because the investigators failed to
conduct a full electrical arc survey, while the State’s expert was
not troubled by that decision because such a survey is not the only
way to identify a fire’s point of origin. Landry’s expert further
criticized the investigation because the investigators did not
conduct a complete reconstruction of the bedroom, but the State’s
expert said this was unnecessary as the original investigators left
the items in the room and relied on photographs and Landry’s
characterizations to visualize an accurate layout. Finally, Landry’s
expert faulted the original investigators for not excluding other
possible ignition sources, while the State’s expert said that they
listed all such sources and evaluated the likelihood that each
could cause a fire in the relevant time frame.
¶19 	The postconviction experts agreed that Cognac, which
Landry testified to having had at the previous night’s party, is
flammable and that “alcohol is miscible in water.”5 But they both
5. The district court’s findings state that miscible means that “[i]f
alcohol were used to ignite a fire, and then firemen shot a lot of
water on the scene, they would not expect lab testing to be able to
determine that alcohol was used.”

Landry v. State
20140638-CA 	11 	2016 UT App 164
also testified that they would have said “no” if they had been
called at trial and asked if alcohol that had been spilled the
previous day could have been the fuel for the fire. And both stated
that it was unlikely that a cigarette on a bare mattress could have
started the fire.
¶20 	The court found that the experts disagreed about what
arson investigators should consider in classifying a fire. Landry’s
expert did not read the trial transcript or Landry’s statements to
the police. He also asserted that even if a person stated the intent
to burn a house, that statement would not be one of the factors
that fire investigators should consider in deciding whether to
classify a fire as arson. The State’s expert, on the other hand, said
arson 	investigators 	should 	consider 	circumstantial, 	nonfire
related details of an investigation, such as witness statements, in
classifying 	a 	fire. 	And 	the 	court 	found 	that 	the 	State’s
postconviction expert did consider such evidence.
¶21 	Ultimately, 	the 	district 	court 	on 	remand 	dismissed
Landry’s claim with prejudice. Landry appeals that disposition.
ISSUE AND STANDARD OF REVIEW
¶22 	This case presents one issue: whether Landry’s appellate
counsel was ineffective for failing to bring a claim of ineffective
assistance of trial counsel. Specifically, Landry contends that trial
counsel was ineffective for failing to object to the admission of an
accelerant detection canine’s alerts and for failing to put on a
nonarson defense through an independent arson expert who
could testify on Landry’s behalf or, at minimum, for failing to
consult with an arson expert so as to be better prepared to
highlight the weaknesses in the State’s case. In reviewing a ruling
on a petition for postconviction relief, we review the district
court’s findings of fact for clear error and its conclusions of law
for correctness. Tillman v. State, 2005 UT 56, ¶ 14, 128 P.3d 1123.

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20140638-CA 	12 	2016 UT App 164
ANALYSIS
¶23 	Parties seeking postconviction relief under the PCRA will
prevail if they show that they received ineffective assistance of
counsel during the conviction, sentencing, or appellate phase of
their 	criminal 	case. 	See 	Utah 	Code 	Ann. 	§ 	78B-9-104(1)(d)
(LexisNexis 2012). Postconviction relief is warranted if “counsel’s
performance 	was 	deficient” 	and 	“the 	deficient 	performance
prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668,
687 (1984). See also Kell v. State, 2008 UT 62, ¶¶ 27–28, 194 P.3d 913
(employing the Strickland standard when reviewing a petition for
postconviction 	relief 	that 	raised 	an 	ineffective 	assistance 	of
counsel claim).6 And we use the same standard when a petitioner
bases a claim of ineffective assistance of appellate counsel on
appellate counsel’s failure to raise a claim of ineffective assistance
of trial counsel. Kell, 2008 UT 62, ¶ 42. The petitioner “has the
burden of meeting both parts of” the ineffective assistance of
counsel test. State v. Templin, 805 P.2d 182, 186 (Utah 1990).
¶24 	Because Landry’s claim is that appellate counsel was
ineffective only for failing to raise trial counsel’s ineffectiveness,
whether 	appellate 	counsel 	provided 	ineffective 	assistance
depends on whether trial counsel was ineffective. We therefore
6. The Strickland prejudice requirement is the same standard a
petitioner must demonstrate to obtain postconviction relief. See
Utah Code Ann. § 78B-9-104(2) (LexisNexis 2012) (“The court may
not grant relief from a conviction or sentence unless the petitioner
establishes that there would be a reasonable likelihood of a more
favorable outcome in light of the facts proved in the post-conviction
proceeding, viewed with the evidence and facts introduced at trial
or during sentencing.”) (emphasis added). Because we conclude
that both trial counsel’s and appellate counsel’s errors prejudiced
Landry under Strickland, see infra ¶¶ 39–43, 45, we conclude that
the PCRA standard is also satisfied.

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20140638-CA 	13 	2016 UT App 164
first assess trial counsel’s performance according to Strickland,
after which we address that of appellate counsel.
I. Trial Counsel
A. 	Trial Counsel’s Performance Was Deficient.
¶25 	To prove that counsel’s performance was deficient, a
claimant “must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687–
88. Reasonableness is evaluated “under prevailing professional
norms.” Id. at 688. And while we “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance,” a claimant who shows that under the
circumstances there is no way that counsel’s actions “might be
considered sound trial strategy” will overcome that presumption.
Id. at 689 (citation and internal quotation marks omitted).
¶26 	Landry 	argues 	that 	trial 	counsel’s 	performance 	was
deficient for two reasons: (1) she “fail[ed] 	to object to the
admissibility of an accelerant sniffing dog’s alerts as substantive
evidence of the presence of an ignitable liquid at the crime scene
and on Landry’s clothing when the alerts were uncorroborated by
laboratory testing” and (2) she “fail[ed] to consult with an arson
expert or call an arson expert to testify at trial” even though she
“lacked experience or training regarding arson and the State’s
case relied primarily on expert testimony regarding arson.”
¶27 	First, we agree that trial counsel’s failure to object to the
admission of testimony about Oscar’s alerts at the motel fell below
the 	objective 	standard 	of 	reasonableness.7 	It 	is 	objectively
7. Landry also argues that counsel should have objected to
testimony regarding Oscar’s alerts in the apartment. Because
those alerts were corroborated by laboratory analysis, at least with
respect to heptane, see State v. Schultz, 2002 UT App 366, ¶ 39, 58
(continued…)

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20140638-CA 	14 	2016 UT App 164
unreasonable 	for 	counsel 	to 	forgo 	a 	valid 	objection 	to 	the
admissibility 	of 	incriminating 	evidence, 	when 	that 	evidence
provides no benefit to the defendant. State v. Doutre, 2014 UT App
192, ¶ 21, 335 P.3d 366. See id. ¶ 24 (“If clearly inadmissible
evidence has no conceivable benefit to a defendant, the failure to
object 	to 	it 	on 	nonfrivolous 	grounds 	cannot 	ordinarily 	be
considered a reasonable trial strategy.”).
¶28 	Here there was an obvious, nonfrivolous ground upon
which trial counsel should have objected to the evidence of
Oscar’s alerts to the shoe and sock—evidence that not only had no
benefit to Landry but which was also rather incriminating. In State
v. Schultz, 2002 UT App 366, 58 P.3d 879, we concluded that, to be
admissible, testimony about canine alerts on accelerants must
either be corroborated by laboratory analysis or satisfy the test for
admissibility 	of 	expert 	testimony. 	Id. 	¶ 	39. 	In 	Schultz, 	the
prosecution’s witnesses testified about a dog’s alerts at the crime
scene even though laboratory results for those samples were
negative for accelerants. Id. ¶¶ 15–16. Although the Schultz court
ultimately held that the trial court’s admission of the dog’s alerts
was 	harmless 	because 	of 	the 	“significant 	amount 	of 	other
evidence to support [the defendant’s] conviction,” id. ¶ 40, it first
concluded that “if testimony about canine detection is offered as
substantive proof of the presence of an accelerant, without
laboratory confirmation, [a] three-part analysis . . . is required
because such evidence is based on novel scientific principles and
methods,” id. ¶ 39. Specifically, where the State seeks to prove the
presence of accelerants by testimony that an accelerant detection
canine alerted without also providing corroborating laboratory
results, the State must prove that (1) the alert is “inherently
P.3d 	879 	(permitting 	“testimony 	about 	canine 	detection 	. . .
offered as substantive proof of the presence of an accelerant” if it
is confirmed by a laboratory), and because we do not have to
reach the issue given our disposition, we decline to address trial
counsel’s 	effectiveness 	with 	regard 	to 	Oscar’s 	alerts 	in 	the
apartment.

Landry v. State
20140638-CA 	15 	2016 UT App 164
reliable,” (2) the techniques used were “properly applied to the
facts of the particular case by sufficiently qualified experts,” and
(3) the evidence of the alert is “more probative than prejudicial.”
Id. ¶¶ 27–29 (citations and internal quotation marks omitted). If
the State does not satisfy these three elements, defense counsel
should object to the admission of testimony about the alert on the
authority of Schultz, unless there is some reason the evidence
would benefit the defendant. See Doutre, 2014 UT App 192, ¶ 24.
¶29 	During Landry’s trial, the State called witnesses who
testified to Oscar’s alerts and who asserted that Oscar was more
sensitive than laboratory testing.8 The district court found that the
State used the alerts as evidence of arson. Yet the State provided
no evidence that accelerant detection canine alerts generally, or
Oscar’s alerts on Landry’s sock and shoe specifically, met the
admissibility test for expert testimony outlined in Schultz. See 2002
UT App 366, ¶¶ 27–29. And Oscar’s handler’s testimony was, as
noted above, quite incriminating. Not only did Oscar’s alerts on
the sock and shoe suggest to the jury that an accelerant was used,
but it also tied the accelerant to Landry’s person, undermining the
defense’s theory that perhaps someone other than Landry was
responsible for causing the fire.
¶30 	Yet trial counsel did not object. Instead, as spun by the
State in its brief, she “dealt with the dog-alert evidence in cross-
examination, showing its limitations both generally and in this
case.” On remand, the district court found that through cross-
examination, trial counsel “elicited testimony that a general rule
of thumb is that the error rate”—i.e., false alerts—of accelerant
detection canines “is probably in the range of 10%.” And in the
8. The olfactory abilities of canines might in some respects be more
sensitive than scientific equipment, as the Provo fire marshal
testified, but whatever the sensitivity of a dog’s nose, evidence of
an accelerant detection canine’s alerts has not yet been accepted
as admissible proof of arson without independent corroborating
laboratory testing. Id. ¶ 26.

Landry v. State
20140638-CA 	16 	2016 UT App 164
evidentiary hearing on remand, the district court found that the
reason Landry’s counsel did nothing more to defend against the
dog-alert testimony was that “she really didn’t think about” it.
Nonetheless, 	the 	State 	suggests 	her 	cross-examination 	was
sufficient to constitute objectively reasonable representation. But
while cross-examination can be an effective trial strategy, “we
cannot conceive of a sound basis for failing to object” under
Schultz “when it should have been obvious” that the State could
not support the assertion that Oscar was a better source than
laboratory 	testing 	for 	reliably 	discerning 	the 	presence 	of
accelerants in an evidentiarily significant way, see Doutre, 2014 UT
App 192, ¶ 21, considering that Schultz expressly states that this is
not the settled view of the scientific community, see 2002 UT App
366, ¶ 26 (“[I]f testimony concerning canine detection is used as
substantive proof that an accelerant was used in a fire, without
laboratory 	confirmation, 	such 	evidence 	is 	based 	on 	novel
scientific principles or techniques.”).
¶31 	No reason has been suggested for why trial counsel would
not object. And she could have objected without contradicting or
interfering with her alternative defense that whatever the cause,
Landry did not start the fire, because the two defenses “offered
alternative grounds for reasonable doubt.” See Dugas v. Coplan,
428 F.3d 317, 331 (1st Cir. 2005) (“‘A tactical decision to pursue
one defense does not excuse failure to present another defense
that 	would 	bolster 	rather 	than 	detract 	from 	the 	primary
defense.’”) (brackets omitted) (quoting Foster v. Lockhart, 9 F.3d
722, 726 (8th Cir. 1993)). Indeed, the only explanation we can
fathom for trial counsel’s failure to object to this harmful evidence
is that “perhaps because of the lack of adequate preparation to
meet [the State’s] expert testimony, trial counsel failed to grasp
the problems with the testimony and to object to it.” See Doutre,
2014 UT App 192, ¶ 24. Her testimony during the evidentiary
hearing on remand is not inconsistent with our surmise. Thus, we
conclude that it was objectively unreasonable for trial counsel not

Landry v. State
20140638-CA 	17 	2016 UT App 164
to object under Schultz to the testimony of Oscar’s uncorroborated
alerts to the sock and shoe found in Landry’s motel room.9
¶32 	Second, we agree with Landry that trial counsel’s failure to
engage an expert of her own, at least to advise and possibly to
testify, was also objectively unreasonable. Although we are
9. The State argues that under State v. Clark, 2014 UT App 56, 322
P.3d 761, trial counsel has no obligation to raise futile objections
so it was not unreasonable for trial counsel not to object on the
authority of Schultz. See id. ¶ 31. We do not agree that a Schultz
objection to the handler’s testimony about Oscar’s alerts to the
sock and shoe and to the Provo fire marshal’s statement that “the
dog is much more sensitive than some of the scientific equipment
that we use”—implying that the alerts were credible despite the
lack of corroborating laboratory analysis—would have been
futile. Had trial counsel objected under the authority of Schultz,
she likely would have prevailed in excluding the 	evidence
because it was the State’s burden, as the proponent of the
evidence, 	to 	prove 	that 	the 	evidence 	of 	Oscar’s 	alerts 	was
admissible as substantive evidence. See Schultz, 2002 UT App 366,
¶ 27 (stating that to satisfy the first element “a proponent must”
provide 	evidence 	of 	the 	alerts’ 	foundation 	and 	reliability).
Further, Landry has shown that the State likely could not have
proven Oscar’s alerts were inherently reliable because Schultz
itself stands for the principle that accelerant detection canine
alerts are not generally accepted in the scientific community. See
id. ¶ 26. See also Yell v. Commonwealth, 242 S.W.3d 331, 345 (Ky.
2007) (Scott, J., concurring and dissenting) (cataloguing cases
from across the United States, including Schultz, that determined
“uncorroborated canine accelerant alerts . . . to be novel scientific
evidence, not generally accepted in the scientific community of
arson investigators”). And the State has not shown how it might
have “‘proffer[ed] a sufficient foundation to demonstrate the
inherent reliability’” of accelerant-detection dog alerts generally
or Oscar’s alerts in particular. See Schultz, 2002 UT App 366, ¶ 27
(quoting State v. Brown, 948 P.2d 337, 340 (Utah 1997)).

Landry v. State
20140638-CA 	18 	2016 UT App 164
generally reluctant to question trial strategy, including whether to
call an expert witness, where “there is no reasonable basis for that
decision,” we will conclude there was deficient performance by
trial counsel. See State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993). See
also S.H. v. State, 2008 UT 78, ¶¶ 39–40, 197 P.3d 636 (determining
that counsel’s performance was deficient because counsel failed
to investigate or provide any expert or character witnesses while
the State presented at least four medical experts). The specific
facts of a case may require trial counsel to investigate potential
witnesses 	to 	determine 	whether 	such 	testimony 	would 	be
appropriate. See State v. Templin, 805 P.2d 182, 187–88 (Utah 1990)
(concluding that trial counsel’s performance was deficient when
counsel 	did 	not 	adequately 	investigate 	potential 	witnesses
identified by the defendant because “a decision not to investigate
cannot be considered a tactical decision. It is only after an
adequate 	inquiry 	has 	been 	made 	that 	counsel 	can 	make 	a
reasonable decision to call or not to call particular witnesses for
tactical reasons.”). See also Dees v. Caspiri, 904 F.2d 452, 454–55 (8th
Cir. 1990) (per curiam) (stating that when expert evidence is
critical to the case, “counsel ha[s] a duty to make a diligent
investigation 	of 	the 	forensic 	evidence 	and 	its 	potential
weaknesses” 	and 	“garner 	the 	expertise 	necessary 	to 	cross
examine” the expert).
¶33 	Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005)—a case we
referenced in the appeal from the initial dismissal of Landry’s
petition, see Landry v. State, 2012 UT App 350, ¶ 8, 293 P.3d 1092,
and 	which 	the 	State 	makes 	no 	attempt 	to 	distinguish—
demonstrates why an expert is needed in cases like Landry’s. In
our previous decision, we noted that Dugas supported at least
further proceedings in this case. In Dugas,
the defendant was convicted of arson for setting fire
to [a] grocery store . . . . At trial, the prosecution
called fire experts, who testified that the fire was
intentionally set based on the lack of flame or
charring damage expected from an electrical fire

Landry v. State
20140638-CA 	19 	2016 UT App 164
and the burn patterns on a pile of papers that
indicated 	the 	pile 	had 	been 	tightly 	packed.
Additionally, 	a 	canine 	trained 	to 	detect 	fire
accelerants “alerted” to the pile of papers, some of
which subsequently tested positive for ignitable
liquids. The defendant’s conviction was upheld
on appeal, and he . . . [subsequently claimed]
ineffective assistance of counsel for inadequately
pursuing a non-arson defense, particularly for not
consulting an expert. . . . On review, the First Circuit
. 	. 	. 	determined 	that 	counsel’s 	failure 	to 	fully
investigate a non-arson defense was deficient and
prejudicial in this case for several reasons. For one,
“challenging the state’s arson case was critical to
[the] defense” because the only other available
defense—another suspect—was “difficult to mount
and 	fraught 	with 	evidentiary 	problems.” 	In
addition, 	the 	state’s 	case 	depended 	on 	arson
evidence 	whose 	weaknesses 	would 	have 	been
revealed by a thorough, expert-assisted defense
investigation. 	The 	First 	Circuit 	also 	found 	it
significant that although this was defense counsel’s
first arson case and he lacked knowledge of fire
investigation principles, he decided to accept the
state’s characterization of the scene rather than seek
guidance 	from 	an 	outside 	expert. 	Counsel’s
challenge to the state’s experts therefore was limited
to cross-examination . . . . But because of counsel’s
inexperience 	and 	unfamiliarity 	with 	arson, 	his
cross-examination 	was 	unfocused 	and 	failed 	to
challenge critical conclusions asserted by the state’s
experts. The First Circuit therefore concluded that
counsel’s failure to mount a non-arson defense,
particularly his failure to consult an arson expert,
“cannot be classified as a conscious, reasonably
informed tactical decision” . . . .

Landry v. State
20140638-CA 	20 	2016 UT App 164
Id. 	(final 	alteration 	in 	original) 	(internal 	citations 	omitted)
(quoting Dugas, 428 F.3d at 320, 328–32).
¶34 	With the benefit of the evidentiary hearing on remand and
the district court’s findings, we are now convinced that, as in
Dugas, more was reasonably to be expected of trial counsel. First,
as in Dugas where counsel was working his first arson case, here
trial counsel testified to having never before worked on an arson
case and to relying on the limited knowledge that can be conveyed
during continuing legal education courses (CLEs). On remand,
the district court found that counsel had attended multiple CLEs
that “touched on arson,” but the court made no findings about,
and the State does not point us to any place in the record that
shows, how many CLEs she attended, how recent these CLEs
were, 	or 	how 	extensively 	these 	CLEs 	dealt 	with 	effective
strategies for defending arson cases. Thus, the findings and record
in 	this 	case 	suggest 	counsel’s 	prior 	experience 	did 	not
independently provide her with the knowledge necessary to cast
doubt on the State’s case through effective cross-examination.
¶35 	Second, despite trial counsel’s inexperience, she made only
minimal efforts to educate herself on fire investigation principles.
The district court on remand found that the only arson expert with
whom trial counsel met was the Provo fire marshal—the State’s
lead arson investigator. In effect, she “accept[ed] the state’s
characterization of the scene” just like counsel in Dugas had done.
See Landry, 2012 UT App 350, ¶ 8 (discussing Dugas, 428 F.3d at
329–30). Even assuming the Provo fire marshal spoke objectively
and candidly in sharing his views with Landry’s trial counsel, she
should have anticipated that the information he conveyed would
have foretold his later testimony on behalf of the prosecution,
given his obligation to testify truthfully. Obviously, he could not
have helped her see the flaws in the State’s experts’ opinions when
he would later testify to the validity of those opinions.
¶36 	Third, we now know from the two postconviction experts
that there were inadequacies in the State’s investigation, of which

Landry v. State
20140638-CA 	21 	2016 UT App 164
trial counsel would have learned had she more thoroughly
investigated the State’s experts with the assistance of her own
expert—an expert who could then have testified on behalf of
Landry at trial. See Templin, 805 P.2d at 188. Specifically, had she
secured the services of the expert who testified for Landry at the
evidentiary hearing on remand, she would have discovered that
it was unclear whether the State’s investigators employed the fire-
investigation principles set out in NFPA 921; that the original
investigators who testified for the State improperly concluded
that the fire’s burn pattern definitely proved ignitable liquids
were poured on the floor; that if alcohol was spilled at a party it
was not a problem that lab results did not find it because alcohol
is miscible in water and would have disappeared when the
firefighters used water to extinguish the fire, see supra note 5; that
it was possible the original investigators improperly evaluated
the potential fuel sources in the room, including the mattress; and
that 	perhaps 	the 	State’s 	experts 	improperly 	considered
circumstantial evidence in classifying the fire as arson and that its
origin 	should 	more 	properly 	have 	been 	classified 	as
“undetermined.”
¶37 	Fourth, as a result of trial counsel’s failure to consult her
own expert, she missed the opportunity to understand the several
problems with the State’s case and to highlight them for the jury.
According to the district court’s findings, the only error in the
State’s experts’ views that trial counsel was able to elicit through
cross-examination was that “just because an investigator is not
able to identify an accidental cause of the fire, it doesn’t mean that
it doesn’t exist.” Likewise, an independent investigation and
consultation with her own expert might have pointed her to the
scientific 	community’s 	skepticism 	about 	accelerant 	detection
canines, see supra ¶ 30 & note 9, which would have helped her
exclude that evidence instead of merely eliciting testimony on
cross-examination that such alerts have an error rate of about 10%.
Thus, as in Dugas, discussion with and use of an independent
expert would have allowed trial counsel to more effectively
challenge the State’s experts’ conclusions.

Landry v. State
20140638-CA 	22 	2016 UT App 164
¶38 	Fifth, as in Dugas, where it was critical to challenge the
State’s theories because of the difficulty in the developing the
theory that another suspect committed the arson, here it was
critical to Landry’s case that trial counsel effectively challenge the
State’s 	theory 	of 	the 	case 	and 	supporting 	expert 	testimony
because the other theories available to Landry’s defense were
“difficult to mount and fraught with evidentiary problems.” See
Dugas, 428 F.3d at 329. Trial counsel’s alternative theories—that
the fire was either caused by a cigarette dropped on a day-old
alcohol spill or by a stranger—were only somewhat supported by
the 	evidence. 	Both 	postconviction 	experts 	agreed 	that 	the
cigarette-in-alcohol theory was weak, which suggests that if
counsel had employed an expert, he or she would have advised
against staking the defense case on this theory, which was only
speculative in any event. Landry testified that he had a party the
night before, which he never mentioned before trial, including
during his interviews with investigators on the night of the fire.
He testified that Cognac had been spilled and that the next day
his girlfriend sat on his bed and smoked a cigarette. But Landry
did not testify that his girlfriend actually dropped the cigarette
into the spilled alcohol. Instead trial counsel relied on testimony,
as stated in the district court’s findings, from a State witness that
“it is possible to start a fire with a discarded cigarette” to connect
Landry’s girlfriend’s potentially-dropped-and-still-lit cigarette to
the alcohol spill. Similarly, while the unidentified-arsonist theory
was on firmer ground than such stories often are—after all, it was
a disinterested neighbor who testified to seeing the unidentified
man, not Landry—the man could not be found. And the neighbor
said nothing about the man carrying gasoline, flicking a lighter,
smoking a cigarette, or the like, although he did testify that, after
he saw the man, he noticed that cardboard used as a temporary
window replacement in a window frame next to Landry’s front
door had been pushed in. Thus, by not consulting an expert of her
own, trial counsel forwent the opportunity to pursue a more
effective trial strategy, instead pursuing theories that were much
weaker. See id. at 329 (noting that the “someone else did it”

Landry v. State
20140638-CA 	23 	2016 UT App 164
defense is both weak and difficult to establish). Consequently, her
representation of Landry was objectively deficient.
B. 	Trial Counsel’s Errors Prejudiced Landry.
¶39 	“When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
guilt.” Strickland v. Washington, 466 U.S. 668, 695 (1984). “In
making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge
or jury.” Id. “Some 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.” Id. at 695–96. And when the other evidence in the case is
“‘less compelling’ we ‘will more closely scrutinize the conduct.’”
State v. Thompson, 2014 UT App 14, ¶ 83, 318 P.3d 1221 (quoting
State v. Troy, 688 P.2d 483, 486 (Utah 1984)).
¶40 	Considering the totality of the evidence in this case, trial
counsel’s errors “had a pervasive effect” and “alter[ed] the entire
evidentiary 	picture.” 	See 	Strickland, 	466 	U.S. 	at 	695–96. 	We
conclude that a reasonable jury would have had a reasonable
doubt but for trial counsel’s deficient performance. We reach this
conclusion for three reasons: (1) postconviction expert testimony
revealed substantial errors in the State’s arson case, which should
have come out at trial; (2) under Schultz, trial counsel likely could
have kept out Oscar’s alerts to the sock and shoe; and (3) the jury’s
struggle to reach a decision at trial indicates that this was a close
case—even with trial counsel’s deficient performance. We now
explain each reason more fully.
¶41 	First, trial counsel’s acceptance of the State’s expert’s
characterization, 	instead 	of 	consulting 	independent 	experts,
prejudiced Landry because it meant that she was unprepared to
effectively cross-examine the State’s witnesses, see supra ¶¶ 35–37,
and that she did not introduce opposing expert opinion testimony

Landry v. State
20140638-CA 	24 	2016 UT App 164
regarding the investigation methods, origin, and cause of the fire.
The reliability of the State’s investigation and the conclusions its
experts drew as to the cause and point of origin of the fire were
the cornerstones of the State’s case. And, as expert testimony in
the postconviction evidentiary hearing revealed, the investigation
may not have been reliable. It was, for example, unclear whether
the investigation was based on established fire-investigation
principles, and it may not have taken full account of all of the
fire’s fuel sources. Landry’s postconviction expert also testified
about numerous other possible errors. Significantly, the State’s
experts’ 	conclusions 	regarding 	the 	origin 	of 	the 	fire 	were
erroneous, as they were based on a misunderstanding of the v-
pattern on the floor and the effect of full-room involvement on
such patterns. And trained experts disagreed as to whether the
fire originated from poured ignitable fluid—making this fire the
result of arson—or was more likely an accident. Further, other
than the State’s expert witnesses and Oscar’s alerts, the State’s
only evidence implicating Landry was circumstantial, namely
that he was being evicted, that he had left very few items in the
apartment when he left,10 that a lighter was found near the crime
scene (although never connected to Landry), and that he was seen
leaving the apartment five to ten minutes before the fire was
reported. Where counsel’s errors result in a failure to undermine
evidence that “the State’s case relied almost entirely upon” and
where that evidence could easily have been undermined had
counsel used appropriate judgment, we will conclude that the
defendant was prejudiced. See Thompson, 2014 UT App 14, ¶¶ 84–
86. See also Dugas, 428 F.3d at 331–32, 341 (concluding that “the
crucial role of the arson evidence to the state’s case” meant
10. We are not convinced that the lack of items in the apartment
supports 	the 	State’s 	case 	circumstantially 	because, 	although
Landry acknowledged he was almost done moving, at least some
of the items he left—prescription medications and financial
documents—are 	not 	the 	sort 	of 	items 	a 	person 	would
intentionally leave behind to burn.

Landry v. State
20140638-CA 	25 	2016 UT App 164
counsel’s 	failure 	to 	effectively 	challenge 	that 	evidence 	was
prejudicial). Thus, if the jury had heard an arson expert testify that
the cause of the fire was not necessarily arson and that, even if it
was arson, the State’s experts were wrong as to the origin and
spread of the fire, the jury very likely would have entertained a
reasonable doubt that Landry set fire to his apartment.
¶42 	Second, had counsel objected, on the authority of Schultz,
to 	the 	dog 	handler’s 	testimony 	regarding 	Oscar’s 	alerts 	to
Landry’s shoe and sock, the State would have been required to
prove the reliability of Oscar’s alerts—and it would have been
difficult to do so. See supra ¶¶ 30–31 & note 9. Trial counsel likely
would have been able to keep out the evidence of the alerts, see
State v. Schultz, 2002 UT App 366, ¶ 27, 58 P.3d 879; Yell v.
Commonwealth, 242 S.W.3d 331, 345 (Ky. 2007) (Scott, J., concurring
and dissenting), as the State has not pointed us to any evidence of
“‘a sufficient foundation to demonstrate the inherent reliability of
the underlying principles and techniques’” as an alternative way
to prove the inherent reliability of Oscar’s alerts, Schultz, 2002 UT
App 366, ¶ 27 (quoting State v. Brown, 948 P.2d 337, 340 (Utah
1997)). And the testimony that Oscar was more reliable than lab
tests, if allowed at all, would have appeared very questionable
indeed. Thus, the State could likely not have satisfied the three-
part test outlined in Schultz, and Oscar’s alerts would not have
come in as substantive evidence of ignitable fluid on Landry’s
sock and shoe. If Oscar’s alerts had not come in as substantive
evidence, there would have been no solid evidence directly
connecting Landry to the cause of the fire alleged by the State:
poured ignitable fluids.
¶43 	Third, we know that even with evidence of Oscar’s alerts
and without the benefit of a contradicting expert, the jury still
struggled in reaching the decision to convict. As we noted in our
initial opinion affirming Landry’s convictions, “at one point the
jury was deadlocked.” State v. Landry, 2008 UT App 461U, para. 3
n.1. And the trial record reflects that the jury only reached a
consensus after the court explained that it would have to come

Landry v. State
20140638-CA 	26 	2016 UT App 164
back to deliberate for an extra, unplanned day, causing a hardship
for at least one juror, if it did not decide the case at that time. This
demonstrates that the jury struggled to reach its decision, making
it much more likely that it would have reached a different
conclusion but for trial counsel’s ineffectiveness.
II. Appellate Counsel
¶44 	Finally, “[t]o show that appellate counsel was ineffective in
failing to raise a claim, [Landry] must show that the issue [was]
obvious from the trial record and . . . probably would have
resulted in reversal on appeal.” Kell v. State, 2008 UT 62, ¶ 42, 194
P.3d 913 (third alteration and omission in original) (citation and
internal quotation marks omitted).
¶45 	In 	the 	previous 	appeal, 	we 	determined 	that 	“[t]he
prejudice resulting from appellate counsel’s failure to raise a
claim of ineffective assistance of trial counsel . . . is . . . automatic”
when, “but for trial counsel’s ineffectiveness, it was reasonably
likely that [Landry] would not have been convicted.” Landry v.
State, 2012 UT App 350, ¶ 11, 293 P.3d 1092.
If 	trial 	counsel’s 	deficiencies 	were 	prejudicial,
appellate counsel’s failure to raise those deficiencies
is necessarily prejudicial in the same way and to the
same extent. The prejudice from Landry’s claim that
appellate counsel was deficient in failing to assert on
appeal trial counsel’s ineffective representation is
therefore implicit in his argument that he was
prejudiced by trial counsel’s deficient performance.
Id. Because we conclude that trial counsel’s deficient performance
prejudiced Landry, we conclude that appellate counsel’s failure to
raise a claim of ineffective assistance of trial counsel on appeal
was likewise objectively deficient and prejudicial.

Landry v. State
20140638-CA 	27 	2016 UT App 164
CONCLUSION
¶46 	We conclude that trial counsel’s performance was deficient
and that there is a reasonable probability that, without this
deficiency, 	the 	jury 	would 	have 	reached 	a 	more 	favorable
outcome for Landry; therefore, we also conclude that Landry has
established ineffective assistance of 	appellate counsel. Thus,
Landry is entitled to appropriate relief under the PCRA. This
relief would ordinarily be a new trial with the assistance of new
counsel, who would presumably engage a qualified expert and
object under the authority of Schultz to much of the State’s case.
But because Landry is no longer imprisoned and has relocated to
Texas, or so we were advised at oral argument,11 it is far from clear
that this would be a reasonable use of judicial resources or even
something Landry would welcome. We therefore remand to the
district court to implement an appropriate remedy under the
circumstances.
11. According to the sentencing report, which is not a part of the
record in this case but of which we take judicial notice, Landry
was sentenced on August 16, 2006, to an indeterminate sentence
of five years to life. We were advised at oral argument that he was
paroled from the Utah State Prison in February 2014.