Landry v. State , 380 P.3d 25 ( 2016 )


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    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
    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,
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    Landry v. State
    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 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
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    Landry v. State
    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-applications-
    of-hydrocarbon-and-photoionization-detection-units-in-arson-
    investigations.html [https://perma.cc/3RWQ-LW7K].
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    Landry v. State
    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 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.
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    Landry v. State
    ¶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 20140638
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    Landry v. State
    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.
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    Landry v. State
    ¶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…)
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    Landry v. State
    ¶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 921 4 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-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.
    20140638-CA                     9               
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    Landry v. State
    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
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    Landry v. State
    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.”
    20140638-CA                     11               
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    Landry v. State
    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…)
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    Landry v. State
    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 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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    Landry v. State
    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.
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    Landry v. State
    ¶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
    20140638-CA                     15               
    2016 UT App 164
    Landry v. State
    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
    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.
    20140638-CA                     16               
    2016 UT App 164
    Landry v. State
    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…)
    20140638-CA                     17               
    2016 UT App 164
    Landry v. State
    ¶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)).
    20140638-CA                     18               
    2016 UT App 164
    Landry v. State
    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]
    20140638-CA                      19               
    2016 UT App 164
    Landry v. State
    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” . . . .
    
    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,
    20140638-CA                    20              
    2016 UT App 164
    Landry v. State
    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
    20140638-CA                    21              
    2016 UT App 164
    Landry v. State
    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
    20140638-CA                     22               
    2016 UT App 164
    Landry v. State
    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.
    20140638-CA                      23               
    2016 UT App 164
    Landry v. State
    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
    20140638-CA                    24               
    2016 UT App 164
    Landry v. State
    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.
    20140638-CA                    25               
    2016 UT App 164
    Landry v. State
    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
    20140638-CA                     26               
    2016 UT App 164
    Landry v. State
    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
    20140638-CA                      27               
    2016 UT App 164
    Landry v. State
    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.
    20140638-CA                    28              
    2016 UT App 164