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Wheeler v. State

Supreme Court of Arkansas

May 21, 2015

TIMOTHY L. WHEELER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

Page 679

[Copyrighted Material Omitted]

Page 680

PULASKI COUNTY CIRCUIT COURT, NO. 60CR-12-3324. HONORABLE HERBERT T. WRIGHT, JR. JUDGE.

OPINION

Page 681

PRO SE MOTIONS FOR TRANSCRIPT, FOR EXTENSION OF TIME, FOR APPOINTMENT OF COUNSEL, AND TO SUPPLEMENT ABSTRACT, ADDENDUM AND BRIEF, AND APPELLEE'S MOTION FOR EXTENSION OF BRIEF TIME

PER CURIAM

In 2013, a jury found appellant Timothy L. Wheeler guilty of first-degree battery and sentenced him to 360 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Wheeler v. State, 2014 Ark.App. 281. Wheeler subsequently filed in the trial court a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014) that was denied. He lodged an appeal from that order in this court. Wheeler filed five motions in which he sought an extension of time to file his brief, access to the transcript, and appointment of counsel. Wheeler then filed his brief, and he has now filed a motion to supplement the brief and tendered a supplemental brief with the motion. The State filed a motion for an extension of brief time along with its response to the motion to supplement. Because we dismiss the appeal, the motions are moot.

When it is clear from the record that the appellant cannot prevail if an appeal

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of an order that denies postconviction relief is permitted to go forward, we dismiss the appeal. Winters v. State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam). Here, it is clear from the record that Wheeler's petition under Rule 37.1 failed to set forth a meritorious claim for relief, and he therefore cannot prevail on appeal.

A brief summary of the evidence presented at trial is necessary to understand the issues. A police officer picked Wheeler up near a location in North Little Rock where two witnesses saw a man fitting Wheeler's description strike Jason Bernard with a large stick or board. One of the witnesses, Marlando Collins, identified Wheeler to an officer on the scene and in court. Collins testified that he saw two men arguing from his car, that he circled the block and observed Wheeler grab a stick or board and strike Bernard as Bernard was walking away. Collins stated in his testimony that, after Bernard fell face first onto the cement sidewalk, Wheeler struck him again, kicked him several times, and threw the implement on the ground before walking away. A doctor who treated Bernard at the ...


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