finding no prejudice from counsel’s failure to object to admission at sentencing of letter whose writer claimed to have been raped by movant, given that “there was no evidence the trial court had actually relied on this letter”
How later courts described this case
- finding no prejudice from counsel’s failure to object to admission at sentencing of letter whose writer claimed to have been raped by movant, given that “there was no evidence the trial court had actually relied on this letter”
- finding remand for an abandonment inquiry to be “pointless,” as the motion court had already considered and denied all claims in both the pro-se and amended motions with written findings of fact and conclusions of law
- “Assuming that a request will be granted does not relieve counsel of the obligation to actually make the request if additional time is needed, and extensions will not be presumed to have been granted without a record thereof.”
- “If ... [the] amended motion filed by appointed counsel is untimely, but there has been no independent inquiry into abandonment, then the case should be remanded to the motion court for such inquiry.”
Written by the judges who cited it.
The opinion
In the Missouri Court of Appeals
Eastern District
DIVISION THREE
JOHN CHILDERS, ) No. ED101405
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Hon. Maura B. McShane
STATE OF MISSOURI, )
) Filed:
Respondent. ) June 2, 2015
John Childers appeals from the judgment denying his motion under Rule 29.15 after an
evidentiary hearing. We affirm.
Childers was convicted on one count of forcible rape after a jury trial. The crime
occurred in 1988, but no suspect was ever found. In 2008, a cold case investigator obtained
DNA from the rape kit, which ultimately resulted in a match with Childers. Childers went to
trial in October of 2010, and his defense was that he had consensual sex with the victim. After
the jury returned a guilty verdict, but before sentencing, a letter was filed with the trial court. It
was written by a woman claiming that Childers, along with another man, had also raped her in
1988. She said the other man had been convicted for her crime—also years after the fact as a
result of a DNA match—but that there had not been enough evidence to prove Childers had also
attacked and raped her. When she learned of this case against Childers, she decided to attend the
trial. She was “so very happy” with the verdict that she decided to write the court to express her
relief that now both men had been convicted. She urged the court to consider imposing on
Childers a sentence of “the maximum years the law allows,” which here would have been life
imprisonment.
The court ultimately sentenced Childers to twenty-five years imprisonment, to run
consecutively to sentences he was already serving. After his conviction was affirmed on direct
appeal, Childers filed a motion for post-conviction relief under Rule 29.15. The motion court
denied all relief after an evidentiary hearing.1 This appeal follows.
Before addressing the merits, we are compelled under Moore v. State to first examine the
timeliness of amended motions in each post-conviction case on appeal, even if the issue is not
raised by either party. 2015 WL 1735533 (Mo. banc April 14, 2015). If it is determined that an
amended motion filed by appointed counsel is untimely, but there has been no independent
inquiry into abandonment, then the case should be remanded to the motion court for such
inquiry. Id. It is our duty to enforce the mandatory timelines in the post-conviction rules, but
“the motion court is the appropriate forum to conduct such an inquiry” into abandonment. Id.
Rule 29.15(g) provides that where, as here, an appeal of the judgment sought to be
vacated, set aside or corrected is taken, “the amended motion shall be filed within sixty days of
the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is
appointed or (2) the date both the mandate of the appellate court is issued and an entry of
appearance is filed by any counsel that is not appointed but enters an appearance on behalf of
movant.” In this case, counsel was appointed on June 12, 2012, after the mandate was issued.
Therefore, the amended motion was due August 13, 2012.2 The amended motion was not filed,
however, until September 10, 2012. There is nothing in the record suggesting that counsel or the
court invoked the thirty-day extension of time available in Rule 29.15(g); if an extension had
1
Trial counsel testified live at the hearing, and Childers’s deposition transcript was submitted. The motion court
considered this deposition and references it in its judgment, but the deposition transcript appears never to have been
actually filed and is not part of the record on this appeal.
2
The sixtieth day from the date of appointment was actually a Saturday, August 11, 2012, so the motion was due the
next Monday, August 13, 2012. Rule 44.01(a).
2
been granted, then the amended motion would have been timely filed ninety days after
appointment of counsel.
The State suggests that we can imply that the court granted a thirty-day extension because
the court is presumed to have acted within the law when it accepted the amended motion as
timely. Counsel for Childers points out that motions for extensions of time are “routinely and
almost always automatically granted if requested,” although she admits no request was made in
this case. Assuming that a request will be granted does not relieve counsel of the obligation to
actually make the request if additional time is needed, and extensions will not be presumed to
have been granted without a record thereof. The situation in Moore was very similar. There, the
amended motion had been filed almost exactly ninety days after appointment of counsel, and
there was no record of an extension of time. 2015 WL 1735533 at *2. Rather than imply that
an extension had been granted, the Supreme Court relied on the fact that there had been no
request to extend or extension on the court’s own motion to conclude that the amended motion
filed more than sixty days after appointment of counsel was untimely. Id. We decline to imply
that the sixty-day deadline had been extended in this case. Thus, the amended motion was
untimely.
The motion court did not conduct an independent inquiry into abandonment. We
conclude, however, that remand in this case is not necessary. We first look to the relief to be
afforded Childers upon the motion court’s determination of abandonment. If the motion court
were to determine that Childers was abandoned, then it should permit the untimely filing and
consider the claims in the amended motion. Id. at *2. If the motion court were to determine that
Childers was not abandoned, then it should not permit the untimely filing of the amended motion
and proceed to adjudicate only those claims in his pro se motion. Id. The dissenting opinion in
Moore advocated that remand is “pointless” when a movant’s pro se motion has been
incorporated into, and thus adjudicated along with, the amended motion. Id. at *4-8. But, as the
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majority pointed out, that could only be true if all the pro se claims had actually been adjudicated
against the movant. Id. at *3, n.3. Because, in that case, the motion court “did not reference
these claims or adjudicate them with written findings of fact and conclusions of law as required
by Rule 29.15(j),” the movant had not “received the process that justice requires.” Id.
Here, unlike the movant in Moore, Childers has received all the process to which he is
entitled. The motion court held an evidentiary hearing at which counsel testified regarding, not
only the claim in the amended motion, but also the claims as stated in fourteen subparagraphs of
Childers’s pro se motion. The motion court then entered its judgment, making express written
findings on each of those fourteen subparagraphs and on the claim in the amended motion. The
motion court denied all relief. In this situation where all of the claims in both the pro se and
amended motion have been adjudicated with written findings of fact and conclusions of law,
remand would be pointless. Thus, we proceed to review the merits of Childers’s appeal.
Appellate review of the motion court’s action under Rule 29.15 “shall be limited to a
determination of whether the findings and conclusions of the trial court are clearly erroneous.”
Rule 29.15(k). We presume the motion court’s denial of post-conviction relief is correct.
McIntosh v. State, 413 S.W.3d 320, 323 (Mo. banc 2013). Findings and conclusions are clearly
erroneous only if, after reviewing the entire record, we are left with the definite and firm
impression that a mistake has been made. Id.
In his sole point on appeal, Childers argues that the motion court clearly erred in denying
his claim that counsel was ineffective for failing to move to strike the letter written by a woman
claiming to have also been raped by Childers in a separate incident. To prevail on a claim of
ineffective assistance of counsel, the movant must establish by a preponderance of the evidence
that: (1) trial counsel failed to exercise the customary skill and diligence of a reasonably
competent attorney under similar circumstances; and (2) counsel’s deficient performance
prejudiced defendant. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland
4
v. Washington, 466 U.S. 668, 687-92 (1984)). To satisfy the prejudice prong, the movant must
demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome
would have been different. Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). If a movant
fails to satisfy one prong, we need not consider the other. Sanders v. State, 738 S.W.2d 856, 857
(Mo. banc 1987).
Childers contends that a competent attorney would have objected to the letter because it
was not properly before the court for a variety of reasons. But even if that were true, Childers
has wholly failed to demonstrate how he was prejudiced by counsel’s allegedly deficient
performance. Rather, in addressing the prejudice prong, Childers merely reiterates the unfairness
of considering this letter when the author was not subject to cross-examination and was not a
victim in this case. But he does not address the motion court’s findings that there was no
evidence the trial court had actually relied on this letter and no showing that the proceeding
would have been any different if counsel had objected to it.
These findings and conclusions by the motion court are supported by the record, and we
are not convinced a mistake has been made. Counsel testified at the evidentiary hearing that he
assumed the trial judge saw and read the letter because it was in the court file. But in pre-
sentence conversations among counsel and the court, which were off-the-record, the judge did
not bring up the letter and counsel did not get the impression that it would be given any weight in
determining the sentence. Thus, counsel felt no need to object to it. Counsel believed that the
sentence was based on the facts brought out at trial and on Childers’s criminal history. At trial,
the court had made a finding that Childers was a prior offender. At sentencing, the victim made
a statement, about which the court made no comment. Nor did the court comment on any other
factors he considered in determining the sentence, stating only that “based on the jury’s finding
of guilt to the charge of forcible rape,” Childers was sentenced to 25 years consecutive to
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sentences he was currently serving. As the State points out, this is not even the maximum
sentence advocated for in the letter, which further suggests the court did not rely on it.
Point denied.
The judgment is affirmed.
ROBERT G. DOWD, JR., Judge
Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.
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