2016 UT App 164

THE UTAH COURT 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

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE

MICHELE M. CHRISTIANSEN and SENIOR JUDGE PAMELA T.

GREENWOOD 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

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
Landry v. State

20140638-CA 2 2016 UT App 164

asserts that trial counsel rendered ineffective assistance by 

failing to object to the State’s use of testimony about an 

accelerant-detection 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, 
Landry v. State

20140638-CA 3 2016 UT App 164

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 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 subfloor,” 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 
Landry v. State

20140638-CA 4 2016 UT App 164

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 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 

 

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-applicationsof-hydrocarbon-and-photoionization-detection-units-in-arsoninvestigations.html [https://perma.cc/3RWQ-LW7K].
Landry v. State

20140638-CA 5 2016 UT App 164

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 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 vpattern, 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.
Landry v. State

20140638-CA 6 2016 UT App 164

¶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 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 
Landry v. State

20140638-CA 7 2016 UT App 164

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 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.
Landry v. State

20140638-CA 8 2016 UT App 164

¶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 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 

(continued...)
Landry v. State

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 

 

(...continued)

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.

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-codesand-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

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” 

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 
Landry v. State

20140638-CA 11 2016 UT App 164

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 

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.

 

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 12 2016 UT App 164

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.

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 

 

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 

(continued...)
Landry v. State

20140638-CA 13 2016 UT App 164

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 

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 

 

(...continued)

a more favorable outcome in light of the facts proved in the postconviction 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.
Landry v. State

20140638-CA 14 2016 UT App 164

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 

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.”).

 

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 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

¶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 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 
Landry v. State

20140638-CA 16 2016 UT App 164

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 crossexamination, showing its limitations both generally and in this 

case.” On remand, the district court found that through crossexamination, 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 

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 

 

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 17 2016 UT App 164

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 to object under Schultz to the 

testimony of Oscar’s uncorroborated alerts to the sock and shoe

found in Landry’s motel room.

9

 

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 

(continued...)
Landry v. State

20140638-CA 18 2016 UT App 164

¶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 

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 Houskeeper 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 

 

(...continued)

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 19 2016 UT App 164

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 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] 
Landry v. State

20140638-CA 20 2016 UT App 164

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 nonarson defense, particularly his failure to consult an 

arson expert, “cannot be classified as a conscious, 

reasonably informed tactical decision” . . . .

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, 
Landry v. State

20140638-CA 21 2016 UT App 164

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 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 
Landry v. State

20140638-CA 22 2016 UT App 164

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.

¶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 
Landry v. State

20140638-CA 23 2016 UT App 164

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” defense is both weak and difficult 

to establish). Consequently, her representation of Landry was 

objectively deficient.
Landry v. State

20140638-CA 24 2016 UT App 164

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 regarding the investigation methods, origin, and 

cause of the fire. The reliability of the State’s investigation and 
Landry v. State

20140638-CA 25 2016 UT App 164

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 26 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 
Landry v. State

20140638-CA 27 2016 UT App 164

consensus after the court explained that it would have to come 

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 
Landry v. State

20140638-CA 28 2016 UT App 164

counsel on appeal was likewise objectively deficient and 

prejudicial.

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.