MOTION FOR EXTENSION OF TIME TO FILE COMPLETE RECORD ON
APPEAL [HOT SPRING COUNTY CIRCUIT COURT, NO. 30CR-10-41]
DISMISSED; MOTION MOOT.
2011, appellant Timothy Allen Wells was found guilty by a Hot
Spring County jury of criminal-attempt first-degree murder
and two counts of committing a terroristic act. He was
sentenced as a habitual offender to 540 months'
imprisonment for the criminal-attempt first-degree murder and
300 months' imprisonment on each count of committing a
terroristic act along with a 144-month enhancement on each
count for the commission of a felony using a firearm. The
sentences were ordered to run consecutively for an aggregate
sentence of 1572 months' imprisonment. The Arkansas Court
of Appeals affirmed his convictions and sentences. Wells
v. State, 2012 Ark.App. 596, 424 S.W.3d 378.
2013, Wells filed in the trial court a petition seeking
scientific testing under Act 1780 of 2001 Acts of Arkansas,
as amended by Act 2250 of 2005 and codified as Arkansas Code
Annotated sections 16-112-201 to -208 (Repl. 2006). On March
7, 2016, Wells filed an amended Act 1780
petition. Wells was denied relief, and he lodged an
appeal of the order to this court. Wells has filed a pro se
motion for an extension of time to file a complete record on
appeal. We need not consider Wells's motion because we
dismiss the appeal. The motion is therefore moot.
appeal of the denial of postconviction relief, including an
appeal from an order denying a petition for writ of habeas
corpus under Act 1780, will not be permitted to go forward
where it is clear that the appellant could not prevail.
Hill v. State, 2016 Ark. 258, 493 S.W.3d 754 (per
curiam). Because Wells failed to state a basis on which the
trial court could have ordered scientific testing under the
statutes, he cannot prevail on appeal.
1780 provides that a writ of habeas corpus may be issued
based on new scientific evidence proving a person actually
innocent of the offense for which he was convicted. Ark. Code
Ann. § 16-112-201; Pankau v. State, 2013 Ark.
162. A trial court can order testing under the Act when the
proposed testing of the specific evidence may produce new
material evidence that would support the theory of defense
and raise a reasonable probability that the petitioner did
not commit the offense. Pankau, 2013 Ark. 162. Where
the scientific evidence was available at trial, the facts
underlying the claim, if proven and viewed in light of the
evidence as a whole, must be sufficient to establish by clear
and convincing evidence that no reasonable fact-finder would
find the petitioner guilty of the underlying offense. Ark.
Code Ann. § 16-112-201(a).
specifically requested as relief that a pair of Nike Shox
that "were never sent to the state crime lab[, ]"
be tested to prove he never wore or touched them. He
requested that a "2250 be performed" to prove his
innocence through DNA testing. Wells also noted that his
confession "only says mexican" and "that
alon[e] is not anuff [sic][, ]" particularly in light of
the fact that the victim stated he could not give a
description of the person who did the shooting.
standard of review for the denial of testing under Act 1780
requires that we will not reverse a trial court's
decision to deny relief unless it is clearly erroneous.
Pankau, 2013 Ark. 162. A finding is clearly
erroneous when, although there is evidence to support it, the
appellate court, after reviewing the entire evidence, is left
with the definite and firm conviction that a mistake has been
trial court's order denying the Act 1780 relief noted
that the amended petition was not timely because the original
petition was not served on the prosecutor or the court, and
the amended petition was also not served. The trial court
further found that there was no new scientific testing that
was not available at the time of trial or that has since
developed that would entitle Wells to relief.
the amendments under Act 2250, there are a number of
predicate requirements that must be met before a court can
order testing under the Act. Hill, 2016 Ark. 258,
493 S.W.3d 754. One of these predicate requirements is that
those petitioners who file a motion for testing more than
thirty-six months after the entry of the judgment of
conviction must rebut a presumption against timeliness. Ark.
Code Ann. § 16-112-202(10)(B).
the alleged lack of service and regardless of whether either
petition was timely, Wells failed to satisfy the other
requirements under section 16-112-202 in either of his Act
1780 petitions to warrant relief.
section 16-112-202, the petition must identify specific
evidence for testing that was secured as a result of
petitioner's conviction; the evidence must have been
maintained subject to a chain of custody; the petitioner must
identify a theory of defense, not inconsistent with any
affirmative defense presented at trial, based on the new
evidence; and the identity of the perpetrator was at issue
during the investigation or prosecution of the offense. Ark.
Code Ann. § 16-112-202(1), (4), (6), (7); Clemons v.
State, 2014 Ark. 454, 446 S.W.3d 619 (per curiam). In
addition, the specific evidence to be tested cannot have been
previously subject to the same testing, and the petitioner
who seeks testing must not have knowingly waived the right to
test the evidence or failed to request testing in a prior
motion for postconviction testing. Ark. Code Ann. §
16-112-202(2). The proposed testing must produce new material
evidence that would support the theory of defense presented
at trial and raise a reasonable probability that the
petitioner did not commit the offense. Ark. Code Ann. §
16-112-202(8); Davis v. State, 2011 Ark. 191 (per
court of appeals described the evidence at trial in its
opinion on Wells's direct appeal. See Wells,
2012 Ark.App. 596, 424 S.W.3d. 378. A brief summary of the
evidence is helpful in determining whether the trial court