                                     Cite as 2017 Ark. 88


                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-16-1069


                                                 Opinion Delivered March   9, 2017
TIMOTHY ALLEN WELLS
                               APPELLANT
                                                 PRO SE MOTION FOR EXTENSION
V.                                               OF TIME TO FILE COMPLETE
                                                 RECORD ON APPEAL
STATE OF ARKANSAS                                [HOT SPRING COUNTY CIRCUIT
                                                 COURT, NO. 30CR-10-41]
                                  APPELLEE
                                                 APPEAL DISMISSED; MOTION
                                                 MOOT.


                                       PER CURIAM


        In 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.

        In 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
                                    Cite as 2017 Ark. 88

filed an amended Act 1780 petition.1 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.

       An 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.

       Act 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




       1
        Although it appears that Wells neglected to state that his claims were made under
penalty of perjury or to include proper verification as required by statute in his petitions,
we need not address the issue in this appeal. The petitions were notarized, and this has been
held sufficient under the circumstances for an Act 1780 petition. Edwards v. State, 2014
Ark. 185 (per curiam).

                                               2
                                      Cite as 2017 Ark. 88

that no reasonable fact-finder would find the petitioner guilty of the underlying offense.

Ark. Code Ann. § 16-112-201(a).

       Wells 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.

       Our 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 committed. Id.

       The 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.

       With 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
                                                3
                                    Cite as 2017 Ark. 88

rebut a presumption against timeliness.           Ark. Code Ann. § 16-112-202(10)(B).

Notwithstanding 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.

       Under 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 curiam).

       The 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 was clearly erroneous in denying Wells’s

request for relief.


                                              4
                                     Cite as 2017 Ark. 88

       Gustavo Cervantes Rodriguez testified that at approximately 3:00 a.m. on February

12, 2010, he opened the door to his trailer in Malvern after a knock on the door. Wells,

who was at the door, fired three shots. A distinctive shoe print—as to the tread pattern and

that it had four circles on the heel impression—was left in the snow at the corner of the

Rodriguezes’ trailer. David Hughes, Wells’s friend, wore a pair of Wells’s shoes when he

went to a police interview after the shooting. Wells’s shoes, as worn by Hughes, appeared

to match the shoe print found in the snow at the Rodriguez residence. Wells’s confession

was read during the trial.

       As far as the Mexican dude, I did that deal. I lost my mind. I didn't even
       know that dude. I woke up the next day and I was like, what did I do. A
       judge just won't understand. It was cold that day and I was walking and I got
       cold. I walked up to the door, knocked on it, the Mexican dude opened the
       door, and I shot. I shot for no reason, because I was on that rampage. I don't
       remember how many times I shot. I'm glad they stopped me, I need some
       help.

Wells, 2012 Ark. App. 596, at 5, 424 S.W.3d at 383.

       The only element Wells has satisfied here is that he identified the evidence for testing,

—the Nike Shox. During a hearing on the Act 1780 petition, Wells stated that he never

touched the shoes and that testing of the shoes would establish his actual innocence.

Moreover, Wells admitted during the hearing that his counsel did not request any testing

on the shoes at the time of trial and that he did not believe it was fair that his attorney should

have been required to ask for testing on the shoes. Wells failed to satisfy the criteria in the

statute because his identity was not in question and the potential results would not support

the theory of defense he relies on in a way to establish his innocence or raise a reasonable

probability that he did not commit the offense.
                                                 5
                                    Cite as 2017 Ark. 88

       At trial, Wells’s theory of the case was to argue that he did not intend to shoot the

victim because he did not know the victim personally, but rather, that he simply shot at

anyone who opened the door to the trailer. Wells, 2012 Ark. App. 596, at 7, 424 S.W.3d

at 384. The jury inferred that Wells purposely engaged in conduct that constituted a

substantial step in a course of conduct known to cause death to another person, regardless

of that person’s identity. Wells, 2012 Ark. App. 596, at 8, 424 S.W.3d at 385. A request

for DNA testing raised now to assert a claim of actual innocence would not produce new

material evidence that would support Wells’s theory of defense presented at trial, nor would

it raise a reasonable probability that he did not commit the offense, particularly in light of

his confession to the contrary. See Leaks v. State, 371 Ark. 581, 583–84, 268 S.W.3d 866,

867 (2007) (per curiam) (Appellant failed to make a prima facie showing that his identity

was at issue during the investigation or prosecution of the criminal case when his confession

was admitted into evidence at trial and his defense theory was that the victim’s murder was

accidental.). It therefore follows that the trial court was not clearly erroneous in finding

that Wells was not entitled to Act 1780 relief, and Wells cannot now prevail on appeal.

       Appeal dismissed; motion moot.




                                               6
