Childers v. State
| Decision Date | 02 June 2015 |
| Docket Number | No. ED 101405,ED 101405 |
| Citation | 462 S.W.3d 825 |
| Parties | John Childers, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Jessica Hathaway, 1010 Market Street, Suite 1100, St. Louis, MO 63101, for Appellant.
Chris Koster, Attorney General, Karen L. Kramer, Asst. Attorney General, P.O. Box 899, Jefferson City, MO 65102, for Respondent.
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. 458 S.W.3d 822 (Mo. banc 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. The amended motion was not filed, however, until September 10, 2012.2 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 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. 458 S.W.3d at 825 . 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 825–26. 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 827–31. But, as the majority pointed out, that could only be true if all the pro se claims had actually been adjudicated against the movant. Id. at 826, 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.
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...Further, we do not presume the motion court granted an extension of time without a record of the extension. Childers v. State , 462 S.W.3d 825 (Mo. App. E.D. 2015) ; Brown , 602 S.W.3d at 849. Here, the motion court appointed counsel on January 3, 2017, after this Court issued its mandate. ......
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