Sherman A. Lynch, Appellant,
State of Utah, Appellee.
District Court, Salt Lake Department The Honorable Deno G.
Himonas No. 110913691
S. Bell, Michael W. Young, and Alan S. Mouritsen, Attorneys
D. Reyes, Ryan D. Tenney, and Daniel W. Boyer, Attorneys for
Michele M. Christiansen authored this Opinion, in which
Judges Gregory K. Orme and J. Frederic Voros Jr. concurred.
Sherman A. Lynch appeals the postconviction court's
dismissal of his petition filed pursuant to the Utah
Post-Conviction Remedies Act (the PCRA). We affirm.
On the afternoon of October 3, 2007, Patricia Rothermich
(Victim) was out walking when a vehicle struck her from
behind, splitting her calf open and catapulting her over
forty feet. The driver of the vehicle
did not stop and there were no other witnesses. Victim died
on the way to the hospital.
Victim was Lynch's wife. In the days following
Victim's death, Lynch appeared on television, asking for
the public's help in finding the driver of a white truck
or van police believed to have been involved in the
collision. Lynch's then-girlfriend saw these broadcasts
and, apparently distressed by the discovery that he was
married, informed police that she had helped Lynch buy a
white truck at an auction and that he kept it in a garage
near his house.
Police searched the garage and found scraps of carpet with
white spray paint on them, as well as metal shavings. The
truck was not there, but the owner of the garage stated that
Lynch had kept a white truck in the garage before
Victim's death, that Lynch had painted over rust spots on
the truck with spray paint, and that, at least on one
occasion, the truck's hood had blown open while Lynch was
A white truck was later discovered in a different garage at
an abandoned property. That truck's Vehicle
Identification Number matched the one on the truck Lynch had
bought at auction. One of the investigating detectives,
Detective Anderson, examined the truck and saw "exactly
the kind of damage" he "expect[ed] to see"
from a collision like the one that killed Victim. He also
noted that the truck's hood did not close properly and
that holes had been drilled into the truck's front frame.
Detective Anderson saw a tow hook and a bug guard spoiler on
the front of the truck, either of which he thought might have
caused Victim's calf injury. DNA from an unidentifiable
female was found on the truck's spoiler. Inside the
engine block, officers found a zip-tie fragment with
"random fracture lines" that "match[ed] up
perfectly" with the fracture lines on one of several zip
ties found at the scene of the collision.
Officers also contacted the previous owner of the truck, who
confirmed that the hood of the truck did not latch properly
but stated that he had not used zip ties to hold the hood
down. The previous owner examined the truck and noted several
changes since it had been sold: the rust spots had been
covered by white paint, an antenna was missing, the
windshield was cracked, the hood had sustained new damage,
and there were "two holes in the sheet metal under the
hood along the front of the engine compartment."
The police then interviewed Lynch, who initially denied
owning any vehicles besides his van, purchasing any vehicles
recently, or keeping vehicles in the garage near his house.
However, when the interviewing officer asked Lynch about a
truck, Lynch admitted that he had bought a truck for his
teenaged son. When asked where that truck was, Lynch claimed
that it had broken down on the freeway several weeks earlier
and that he had given the truck to a passerby named
"Chuck" who stopped to help.
Officers searched Lynch's home and discovered five white
spray paint cans. They also found the truck's title and
registration behind the license plate of Lynch's van. And
a forensic analyst (the Paint Analyst) testified that the
paint fragments found on Victim's clothing could have
come from the same source as the original paint on the truck
because the fragments were of the "same distinct type of
paint as that on the hood of the truck" and matched it
on multiple microscopic layers. The Paint Analyst also
testified that paint smears found elsewhere on Victim's
clothing were from the "same distinct type" of
spray paint as had been more recently used on the truck.
Lynch was ultimately convicted of murder and obstruction of
justice in connection with the death of Victim. Following
Lynch's convictions, trial counsel withdrew from the
case, and Lynch moved for a new trial on two main grounds:
(1) ineffective assistance of trial counsel and (2) newly
discovered evidence. Specifically, Lynch asserted that trial
counsel were ineffective because they "did not share
discovery with him, did not adequately consult with [him]
prior to or during the trial, did not pursue investigative
leads, and did not properly advise [him] prior to or during
the trial." Lynch further asserted that he had located a
witness-an individual named Ashe-"with evidence that
strongly suggests that neither [he] nor his truck was
involved in the hit and run which claimed the life of
[Victim]" and that this newly discovered evidence
warranted a new trial.
In support of his motion, Lynch submitted "a scale
diagram showing the locations of the injuries, the paint
analysis done on [Victim's] pants, and the various damage
oxidation marks on his truck, " which, according to
Lynch, "his trial attorneys refused to submit and/or
argue to the jury." Lynch also submitted a handwritten
letter, in which he made arguments regarding the height of
the truck's tow hook and other components of the truck as
compared to Victim's injuries. He also asserted that,
before trial, he had "pointed out" relevant
evidence to trial counsel that they improperly "thought
was not [germane] to [his] defense, " including pretrial
testimony from Detective Anderson regarding certain oxidation
and paint transfers (or the lack thereof) onto Victim's
clothing that made it "impossible" for Lynch's
truck to have been the vehicle that struck Victim. After an
evidentiary hearing, the trial court denied Lynch's
motion for a new trial.
Represented by new counsel, Lynch then filed a direct appeal.
See State v. Lynch, 2011 UT App 1, 246 P.3d 525.
Lynch claimed "that the trial court erred in failing to
give a jury instruction regarding his alibi defense and that
the prosecutor engaged in misconduct by making statements
during closing argument implying that [Lynch] had confessed
to the crime." Id. ¶ 13. This court
affirmed Lynch's convictions. Id. ¶¶
Lynch then filed a PCRA petition,  raising twenty-nine issues, which largely
fell into two categories-ineffective assistance of counsel
and newly discovered evidence. More specifically, regarding
Lynch's ineffective-assistance claims, he raised (1)
three claims relating to two potential witnesses-Ashe and
another individual named Maxwell; (2) five claims relating to
the truck's physical components and damage to the truck;
(3) four claims relating to the truck's
grille; (4) five claims relating to
Victim's injuries; (5) five claims relating to the zip
ties; and (6) six claims relating to paint and paint
In support of his newly discovered evidence claim, Lynch
submitted affidavits from two private investigators-Terry
Steed and Benjamin Warren-who had examined Lynch's truck
in February 2012. In his affidavit, Warren stated that
Detective Anderson had told him and Steed that "there
were no zip ties found at the actual scene" and that
"the zip ties were used by the police officers,
themselves, while transporting the Truck from its initial
location to the Evidence Center." In his affidavit,
Steed corroborated Warren's statements regarding the zip
ties. Steed further attested that the truck's front
grille was intact and that there "was no physical
evidence suggesting that the front grille had sustained any
damage, or that it had been broken in any way." He also
attested that the truck's hood latch "appeared to
work perfectly for the age of the vehicle" and that
"there was no evidence of a malfunction." Finally,
Steed attested that "no 'tow hook or tow ring'
could be located on the Truck's front end."
The State moved for summary judgment on all of Lynch's
claims, arguing that many of Lynch's
ineffective-assistance claims were procedurally barred
because he had previously raised them during the new-trial
proceedings. Alternatively, the State argued that all of
Lynch's ineffective-assistance claims failed as a matter
of law. The State further argued that Lynch's newly
discovered evidence claim failed as a matter of law.
The postconviction court rejected some of Lynch's claims
as procedurally barred; it determined that "[t]he
essence of the grounds underlying" Lynch's
"first, second, third, fourth, eleventh, sixteenth,
eighteenth, nineteenth, twentieth, twenty-first,
twenty-second, and twenty-third claims for relief" had
"previously been raised in either Lynch's motion for
a new trial or on appeal" and were therefore
procedurally barred under the PCRA. The court rejected some
of Lynch's claims on the merits; it determined that
"[w]ith respect to [Lynch's] third, fourth, fifth,
sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth,
fourteenth, fifteenth, twenty-first, twenty-fourth,
twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth
claims, the State has shown that Lynch's previous counsel
had a conceivable tactical basis or justification for failing
to take the action in question." The court further
determined that Lynch could not demonstrate prejudice with
respect to any of the claims.
The court denied the State's motion for summary judgment
on Lynch's newly discovered evidence claim and held an
evidentiary hearing. Among others, Warren, Steed, and
Detective Anderson testified at the hearing. At the
conclusion of the hearing, the postconviction court denied
Lynch's petition "in its entirety." The court
concluded that Lynch was "miles and miles away"
from meeting the PCRA's newly discovered evidence
First, Lynch contends that the postconviction court
erroneously granted the State's motion for summary
judgment on his claims of ineffective assistance of counsel.
Second, Lynch contends that the postconviction court
erroneously concluded that his newly discovered evidence
"was insufficient to demonstrate that no reasonable
trier of fact could have found [him] guilty of the charged
Ineffective Assistance of Counsel
Lynch first contends that "[t]he [postconviction] court
erred by granting the State's motion for summary judgment
on [his] claims of ineffective assistance of counsel."
"We . . . review the postconviction court's grant of
summary judgment for correctness." Honie v.
State, 2014 UT 19, ¶ 28, 342 P.3d 182. "We
affirm a grant of summary judgment when the record shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law." Ross v. State, 2012 UT 93, ¶ 18, 293
P.3d 345 (citation and internal quotation marks omitted).
"In making this assessment, we view the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party." Id.
(citation and internal quotation marks omitted).
"The PCRA affords a convicted defendant the opportunity
to have his conviction and sentence vacated or modified under
certain circumstances." Kell v. State, 2008 UT
62, ¶ 13, 194 P.3d 913 (citation and internal quotation
marks omitted). "A petition for post-conviction relief
is not a substitute for appellate review, but only a
collateral attack on a conviction or sentence."
Id. (citation and internal quotation marks omitted).
Under the PCRA, a claim is barred if it "was raised or
addressed at trial or on appeal." Utah Code Ann. §
78B-9-106(1)(b) (LexisNexis 2012). Likewise, a claim is barred under the PCRA
if it "could have been but was not raised at trial or on
appeal" unless "the failure to raise that ground
was due to ineffective assistance of counsel."
Id. § 78B-9-106(1)(c), (3).
We begin our analysis by considering whether any of
Lynch's ineffective-assistance claims are procedurally
Barred Ineffective-Assistance Claims
The PCRA precludes relief on any ground that "was raised
or addressed at trial or on appeal." Utah Code Ann.
Lynch asserts that trial counsel were constitutionally
ineffective for (1) failing to examine his truck, (2) failing
"to test the State's theory regarding the zip ties,
" (3) failing "to investigate the paint found on
Victim's clothing or to consult or call an expert for the
defense, " and (4) failing to interview or follow up
with two potential witnesses. He further asserts that
appellate counsel was ineffective for failing to argue trial
counsel's ineffectiveness regarding these claims.
The State asserts that Lynch's truck examination claims,
paint claims, and claims concerning Maxwell and Ashe
"were 'raised or addressed' in the new trial
motion" and are consequently barred pursuant to
subsection 78B-9-106(1)(b).Lynch responds that his
ineffective-assistance claims "should not be barred . .
. because [he] did not 'raise' his post-conviction
claims in his motion for new trial." According to Lynch, he "hinted at
some of his . . . claims during the hearing on his motion for
new trial and in handwritten letters to the trial court, but
nothing said during that hearing or in those letters suggests
that [he] 'raised' the claims for purposes of
applying [subsection] 78B-9-106(1)(b)'s bar." We
address Lynch's claims in turn to determine whether they
are procedurally barred pursuant to subsection
78B-9-106(1)(b) of the PCRA.
First, Lynch contends that trial counsel performed
deficiently by failing to examine his truck "even though
the State's case was devoted almost exclusively to
convincing the jury that the white truck was the murder
weapon." Lynch observes that "the State introduced
evidence to suggest that a 'tow hook' on the front of
the white truck explained the devastating injury to
[Victim's] left calf" and to "suggest that a
broken zip tie was found in the white truck's engine
compartment, and that the zip tie was likely used to secure
the truck's purportedly faulty hood." According to
Lynch, trial counsel "never examined the truck, never
personally saw it, never tested it, and never double-checked
the accuracy of the State's examination." The State
contends that Lynch "thoroughly covered this in his new
trial motion in the criminal case" where "he argued
that his trial counsel were ineffective for 'fail[ing] to
have important evidence examined and/or
In his motion for a new trial, Lynch argued that trial
counsel "failed to have important evidence examined
and/or challenged." More specifically, Lynch asserted
that "his truck was in such poor operating condition
that it could not have even made it to the place where his
wife was killed." According to Lynch, he
"repeatedly asked his attorneys to have the truck
examined by a mechanic to determine its working condition,
" and he "informed counsel that brake and engine
problems made it virtually impossible to go up or down hills
of anything other than the mildest grade." Nevertheless,
Lynch argued, "trial counsel failed to have the truck
checked and the unopposed evidence at trial was that the
truck ran fine." Lynch also noted that he was
"still in the process of having the truck checked
mechanically" by a "certified GM master
Before the hearing on Lynch's motion for a new trial, one
of Lynch's trial attorneys-Julie George-submitted an
affidavit. In her affidavit, George attested that
17.Mr. Lynch indicated to me and to [the] private
investigator that the subject vehicle would not start, run,
18. I contacted [the prosecutor] to make arrangements for a
test-drive of the truck. When those arrangements were made,
shortly before trial, I informed Mr. Lynch of this.
19. I met with Mr. Lynch and told him of the arrangements and
that the detective would need to be present during the
test-drive. I informed him that, should the vehicle be
operational, he would be left with those facts for trial. In
the presence of the private investigator, Mr. Lynch told me
that he did not want the vehicle tested.
testified similarly at the hearing on Lynch's motion. In
ruling on Lynch's motion for a new trial, the trial court
credited George's affidavit and testimony, and concluded:
As to the operational capabilities of the truck, George met
with Lynch and informed him "that the detective would
need to be present during the test-drive" and "that
should the vehicle be operational, he would be left with
those facts for trial." Lynch then instructed George
"that he did not want the vehicle tested."
Moreover, since the trial, Lynch has arranged to have
"the truck checked mechanically." In his Motion, he
noted that should this inspection yield additional
information, he would submit it to the court. Tellingly, no
additional information has been forthcoming.
Thereafter, in his PCRA petition, Lynch generally alleged
that trial counsel were ineffective for "fail[ing] to
investigate and to examine the alleged murder weapon, "
i.e., his white truck. As part of this claim, he specifically
alleged that "[t]he grille, had it struck [Victim],
would have been damaged, but it was not"; that
"[t]he prosecution witnesses . . . testified that there
was a tow hook on the vehicle which caused injury to
[Victim's] legs, when in fact there was no such tow hook
on [Lynch's] vehicle"; that "[t]he grille
configuration on [Lynch's] vehicle was inconsistent with
the diagrams of the grille presented to the jury by the
prosecution"; that "[t]here was no proof as to the
presence or lack thereof of any holes or parts of the truck
into which zip ties would have been placed in order to keep
the hood down"; and ...