MOTIONS TO FILE A BELATED BRIEF, FOR SCIENTIFIC DNA TESTING,
TO FILE A NON-CONFORMING BRIEF, FOR DEFAULT JUDGMENT, AND
MOTION TO FILE TENDERED AMENDED DIRECT APPEAL [WASHINGTON
COUNTY CIRCUIT COURT, NO. 72CR-99-1853]
R. BAKER, ASSOCIATE JUSTICE.
Howard Lee Leach appeals from the dismissal of his pro se
pleading titled "Amended Direct Appeal" wherein he
requested scientific testing pursuant to Arkansas Code
Annotated section 16-112-201 (Repl. 2016), which Leach filed
in the court where he was convicted. Leach contended in his
request for testing that he is innocent of the crime of
first-degree sexual assault to which he had pleaded guilty in
2000 and asked the trial court to provide DNA testing to
support his innocence claim. Leach further contended that DNA
testing was not performed at the time of his guilty plea
because his attorney had advised that such testing would not
be performed at the State's expense. Finally, Leach
attached to his request for scientific testing pleadings
titled "Statement to the Court" and "Grounds
to Correct an Illegal Sentence," which raised the same
claims that he had raised in his prior habeas proceeding and
in his petition to correct an illegal sentence. See
Leach, 2017 Ark. 176, 518 S.W.3d 670. Accordingly, the
trial court dismissed with prejudice Leach's request for
relief on the basis that Leach had raised the same claims in
his previous petitions and was not entitled to relief.
pending before this court are pro se motions filed by Leach
to file a belated brief, for scientific DNA testing, to file
a nonconforming brief, for a default judgment, and to file a
tendered amended direct appeal brief. We need not consider
Leach's motions because his request for scientific
testing pursuant to Act 1780, codified at Arkansas Code
Annotated sections 16-112-201 to -208, is without merit. An
appeal of the denial of postconviction relief will not be
permitted to go forward when it is clear that the appellant
could not prevail. Hill v. Kelley, 2018 Ark. 118,
542 S.W.3d 852.
stated above, in 2000, Leach entered a plea of guilty in the
Washington County Circuit Court to one count of first-degree
sexual abuse and for violating the terms of his suspended
sentences for seven counts of first-degree forgery.
Consecutive sentences of sixty months' imprisonment were
imposed for each of the seven forgery offenses, and a
concurrent sixty-month suspended sentence was imposed for the
offense of first-degree sexual abuse.
not reverse a denial of postconviction relief unless the
trial court's findings are clearly erroneous.
McClinton v. State, 2017 Ark. 360, 533 S.W.3d 578. 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 committed. Id.
petitioner seeking testing under Act 1780 must present a
prima facie case that identity was an issue at trial. Ark.
Code Ann. § 16-112-202(7). When a defendant enters a
plea of guilty, the guilty plea is the trial. Cox v.
State, 299 Ark. 312, 772 S.W.2d 336 (1989). By entering
his plea of guilty, appellant admitted that he committed the
offense, and therefore, identity was not in question. See
McClinton, 2017 Ark. 360, 533 S.W.3d 578. Furthermore,
Leach must demonstrate that the evidence to be tested is in
possession of the State. Ark. Code Ann. § 16-112-202(4).
Accordingly, Leach fails to make a prima facie showing that
he is entitled to new scientific testing because he has not
demonstrated that identity was at issue or that there is any
evidence in possession of the State capable of being tested.
Ark. Code Ann. §§ 16-112-202(7) &
respect to the additional allegations raised in Leach's
"Statement to the Court" and his "Grounds to
Correct Illegal Sentence," these pleadings reassert the
following claims that were raised and rejected in his
previous requests for postconviction relief: that there was
insufficient evidence supporting the charges of sexual abuse
to which he had pleaded guilty; that counsel was ineffective;
and that the trial court violated the prohibition against
double jeopardy when it revoked Leach's suspended
sentences on the seven counts of forgery. Leach,
2017 Ark. 176, 518 S.W.3d 670. Furthermore, such claims are
not cognizable in an action for scientific testing under Act
1780. McClinton, 2017 Ark. 360, 533 S.W.3d 578
(petitions under Act 1780 are limited to those claims related
to scientific testing of evidence, and the Act does not serve
as a substitute for the pursuit of other remedies that are
outside the purview of the Act.). The trial court did not
clearly err when it rejected Leach's claim for scientific
testing as well as his other claims for postconviction
dismissed; motions moot.
Josephine Linker Hart, Justice, dissenting.
March 2, 2000, Mr. Leach pleaded guilty to first-degree
sexual assault and seven counts of forgery. On July 16, 2018,
he filed a pleading styled "Amended Direct Appeal"
in which he alleged multiple grounds for overturning his
conviction. Two days later, on July 18, 2018, the circuit
court of Washington dismissed his petition. Mr. Leach timely
filed a notice of appeal.
October 17, 2018, Mr. Leach filed a simple hand-written
motion styled "Motion to File a Belated Brief." In
it, he stated, "I have now gone past my court deadline
date requirements of this court. I now beg this court to
please file a "Belated Brief" that bears my
not[a]rized signature." If a brief was tendered, it does
not appear in the record. Significantly, his motion for a
belated brief did not allege any "good cause"
grounds for granting him additional time. Accordingly, Mr.
Leach has not perfected his appeal, and there are adequate
legal grounds for dismissing his appeal on jurisdictional
grounds nearly a year ago.
October 17, Mr. Leach filed a motion styled "Motion for
Scientific DNA ...