John Childers v. State of Missouri, 462 S.W.3d 825 (Mo. Ct. App. 2015). · Go Syfert
John Childers v. State of Missouri, 462 S.W.3d 825 (Mo. Ct. App. 2015). Cases Citing This Book View Copy Cite
63 citation events (63 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Cited for
At page 828 Presumption of extension and necessity of record30 citing cases“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.”7 citing courts quote it
  • Clayton D. Reehten v. State of Missouri, 663 S.W.3d 506 (Mo. Ct. App. 2023).published
    (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 th…)
  • CHRIS COURTOIS v. STATE OF MISSOURI, 667 S.W.3d 161 (Mo. Ct. App. 2023).published
    (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 th…)
  • Kyle Herrington v. State of Missouri, 658 S.W.3d 267 (Mo. Ct. App. 2023).published
    (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 th…)
  • John Brewer v. State of Missouri, 660 S.W.3d 444 (Mo. Ct. App. 2022).published
    (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 th…)
  • Courtney Little v. State of Missouri, 652 S.W.3d 390 (Mo. Ct. App. 2022).published
    (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 th…)
  • Gregory Anderson v. State of Missouri, 623 S.W.3d 613 (Mo. Ct. App. 2021).published
    (extensions will not be presumed to have been granted without a record thereof)
  • Michael L. Smith v. State of Missouri, 697 S.W.3d 617 (Mo. Ct. App. 2024).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Walter Nickels v. State of Missouri, 668 S.W.3d 287 (Mo. Ct. App. 2023).published
    Contra Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Travon D. Johnson v. State of Missouri, 660 S.W.3d 78 (Mo. Ct. App. 2023).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Donald Hornsey v. State of Missouri, 649 S.W.3d 386 (Mo. Ct. App. 2022).published 2 cites
    Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
Show 20 more citing cases
  • Cedric Dewayne Mack v. State of Missouri, 635 S.W.3d 607 (Mo. Ct. App. 2021).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Jerry A. Harley v. State of Missouri, 633 S.W.3d 912 (Mo. Ct. App. 2021).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015); see also Brown, 602 S.W.3d at 849.
  • Mortez Cleaves v. State of Missouri, 626 S.W.3d 344 (Mo. Ct. App. 2021).published
    Moore, 458 S.W.3d at 827-31 (Wilson, J., dissenting); Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015); Bustamante v. State, 478 S.W.3d 431 , 435 n.2 (Mo. App. W.D. 2015).
  • Christina Halter v. State of Missouri, 628 S.W.3d 238 (Mo. Ct. App. 2021).published 2 cites
    Further, the motion court did not adjudicate Movant’s claims asserted in her pro se Rule 29.15 motion.5 “It is this Court’s duty to enforce the mandatory timelines in the post-conviction rules, but the motion court is the appropriate forum…
  • Alonzo Showalter v. State of Missouri, 607 S.W.3d 804 (Mo. Ct. App. 2020).published
    Our court acknowledges the inconvenience abandonment issues are causing motion courts; however, we emphasize that “the purposes served by remand are mandatory compliance with Missouri Supreme Court Rules, and adherence to jurisdictional li…
  • Brian M. Martin v. State of Missouri, 606 S.W.3d 675 (Mo. Ct. App. 2020).published
    Although “motions for extensions of time are routinely and almost always automatically granted if requested, . . . extensions will not be presumed to have been granted without a record thereof.” Frazee v. State, 480 S.W.3d 442, 445 (Mo. Ap…
  • Pervis McAllister v. State of Missouri, 600 S.W.3d 300 (Mo. Ct. App. 2020).published
    While we acknowledge the inconvenience abandonment issues are causing motion courts, “the purposes served by remand are mandatory compliance with Missouri 3 Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015) established an excepti…
  • Marquis D. Robinson v. State of Missouri, 592 S.W.3d 406 (Mo. Ct. App. 2020).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo.App. 2015).
  • Steven Brunnworth v. State of Missouri, 583 S.W.3d 505 (Mo. Ct. App. 2019).published
    Rule 24.035(g) specifically provides that where, as in 5 “Our Court has acknowledged an exception to this rule applies where all of the claims in a movant’s pro se motion for post-conviction relief have been incorporated into and fully adj…
  • Kenneth Pickens, III v. State of Missouri, 575 S.W.3d 795 (Mo. Ct. App. 2019).published
    The required inquiry into whether counsel’s failure to comply with the rule constitutes abandonment due to an untimely filed amended motion “is [thus] not merely a technical exercise.” Sayre v. State, 493 S.W.3d 33, 35 (Mo. App. W.D. 2016)…
  • Ross v. State, 527 S.W.3d 116 (Mo. Ct. App. 2017).published
    We have recognized that a remand under Moore is unnecessary if "all of the claims in both the pro se and amended motion ha[d] been adjudicated with written findings of fact and conclusions of law”;' in those circumstances, the postconvicti…
  • Edwards v. State, 514 S.W.3d 68 (Mo. Ct. App. 2017).published
    Therefore, we cannot review under the exception that remand is 'pointless' when a movant's pro se motion has been incorporated into, and thus adjudicated along with, the amended motion.” Johnson, 491 S.W.3d at 312 (citing Childers v. State…
  • Paul Gittemeier v. State of Missouri, No. ED103189 (Mo. Ct. App. Sept. 20, 2016).published
    (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)
  • JONATHAN JAMES PRICE v. STATE OF MISSOURI, 489 S.W.3d 358 (Mo. Ct. App. 2016).published 2 cites
    "Although 'motions for extensions of. time are routinely and almost always automatically granted if requested, ... extensions will not be presumed to have been granted without a record thereof.’ ” Frazee v. State, 480 S.W.3d 442, 445 (Mo.A…
  • Johnson v. State, 491 S.W.3d 310 (Mo. Ct. App. 2016).published
    Childers v. State, 462 S.W.3d 825, 828 (Mo.App.E.D.2015).
  • Anthony Wallace v. State of Missouri, 487 S.W.3d 62 (Mo. Ct. App. 2016).published
    Although Counsel filed a request for a thirty-day extension of time pursuant to Rule 29.15(g), the parties agree there is nothing in the record indicating that the court ever ruled upon the request for a thirty-day extension. “[Extensions…
  • Destynie Wright v. State of Missouri, 634 S.W.3d 698 (Mo. Ct. App. 2021).published
    See Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Mitchell v. State, 528 S.W.3d 454 (Mo. Ct. App. 2017).published
    See Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
  • Carenzo Pittman v. State of Missouri, 504 S.W.3d 76 (Mo. Ct. App. 2016).published
    See Childers v. State, 462 S.W.3d 825, 828 (Mo.App.E.D. 2015).
  • ERIC JERONE WILLIAMS v. STATE OF MISSOURI, 521 S.W.3d 612 (Mo. Ct. App. 2016).published 2 cites
    See, e.g., Childers v. State, 462 S.W.3d 825, 828 (Mo. App. 2015); Bustamante v. State, 478 S.W.3d 431 , 435 n.2 (Mo. App. 2015); Pittman v. State, - -- S.W.3d ----, 2016 WL 2895113, at *4 (Mo. App. E.D.
At page 827 Examining timeliness of amended post-conviction motions19 citing cases“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.”2 citing courts quote it
  • Michael David Burge v. State of Missouri, 707 S.W.3d 68 (Mo. Ct. App. 2025).published
    “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.” Childers v. State, 462 S.W.3d 825, 827 (Mo.App.
  • Christina Halter v. State of Missouri, 628 S.W.3d 238 (Mo. Ct. App. 2021).published 2 cites
    Further, the motion court did not adjudicate Movant’s claims asserted in her pro se Rule 29.15 motion.5 “It is this Court’s duty to enforce the mandatory timelines in the post-conviction rules, but the motion court is the appropriate forum…
  • Corey McClendon v. State of Missouri, 617 S.W.3d 530 (Mo. Ct. App. 2021).published
    Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015).
  • Roy D. Brown v. State of Missouri, 602 S.W.3d 846 (Mo. Ct. App. 2020).published
    Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015).
  • Hougardy v. State, 534 S.W.3d 874 (Mo. Ct. App. 2017).published
    Childers v. State, 462 S.W.3d 825, 827-28 (Mo. App. E.D. 2015). .
  • Graves v. State, 512 S.W.3d 87 (Mo. Ct. App. 2017).published
    “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.” 3 Price, 500 S.W.3d at 327 . (quoting Ch…
  • ANN MARGARET WILLIAMS v. STATE OF MISSOURI, 501 S.W.3d 562 (Mo. Ct. App. 2016).published
    Movant’s notice of appeal identified the address for Movant’s counsel as the “Office of State Public Defender!.]” Timeliness of the Amended Motion “Before addressing the merits, we are compelled under Moore v. State[, 458 S.W.3d 822, 826 (…
  • Richard Wesley Williams v. State of Missouri, 503 S.W.3d 301 (Mo. Ct. App. 2016).published
    Childers v. State, 462 S.W.3d 825, 827 (Mo. App. 2015).
  • Sean A. Price v. State of Missouri, 500 S.W.3d 324 (Mo. Ct. App. 2016).published
    “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.” Childers v. State, 462 S.W.3d 825, 827…
  • Melvin Huffman v. State of Missouri, 493 S.W.3d 892 (Mo. Ct. App. 2016).published
    (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.)
Show 9 more citing cases
  • Michael A. Mahone v. State of Missouri, 504 S.W.3d 71 (Mo. Ct. App. 2016).published
    “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.” Childers v. State, 462…
  • Tousaint E. Richard v. State of Missouri, 487 S.W.3d 504 (Mo. Ct. App. 2016).published
    We briefly note that a remand is unnecessary “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.” Frazee v. State, 480 S.W.3d 442, 445 (Mo.App.W.D.2016)…
  • Anthony Pulliam v. State of Missouri, 484 S.W.3d 877 (Mo. Ct. App. 2016).published
    “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.” Childers v. State, 462…
  • Louis James Adams v. State of Missouri, 483 S.W.3d 480 (Mo. Ct. App. 2016).published
    Childers v. State, 462 S.W.3d 825, 827 (Mo.App.E.D.2015).
  • Lawrence Frazee v. State of Missouri, 480 S.W.3d 442 (Mo. Ct. App. 2016).published
    As the State points out, “we are compelled under Moore v. State to first examine the timeliness of amended motions in each post-conviction case on appeal.” Childers v. State, 462 S.W.3d 825, 827 (Mo.App.
  • Paula McCullough v. State of Missouri, 480 S.W.3d 439 (Mo. Ct. App. 2016).published
    As a reviewing appellate court, “we are compelled under Moore v. State to first' examine the timeliness of amended motions in' each post-conviction case on appeal.” Childers v. State, 462 S.W.3d 825, 827 (Mo.App.
  • Reno Whitt, Jr. v. State of Missouri, 655 S.W.3d 202 (Mo. Ct. App. 2022).published
    See Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015).
  • Ronald Taylor v. State of Missouri, 497 S.W.3d 342 (Mo. Ct. App. 2016).published
    See, e.g., Childers v. State, 462 S.W.3d 825, 827 (Mo.App.E.D.2015) (citing Moore v. State, 458 S.W.3d 822 (Mo.banc 2015)).
  • Patrick H. Sayre v. State of Missouri, 493 S.W.3d 33 (Mo. Ct. App. 2016).published
At page 829 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 letter1 citing case1 citing court put it this way
  • Megan L. Hendricks v. State of Missouri, 663 S.W.3d 875 (Mo. Ct. App. 2023).published
    (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…)
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
John CHILDERS, Appellant,
v.
STATE of Missouri, Respondent
ED101405.
Missouri Court of Appeals.
Jun 2, 2015.
Published opinion
462 S.W.3d 825
2015 Mo. App. LEXIS 582
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.
Dowd, ódenwald, Gaertner.
Cited by 58 opinions  |  Published
ROBERT G. DOWD, JR., Judge

John Childers appeals from the judgment denying his motion under Rule 29.15 after an evidentiary hearing. We affirm.

[*827] 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 Child-ers. 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[*828] 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.

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 erronéous 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[*829] 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 v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 evi-dentiary hearing that he assumed the trial judge saw and read the letter because it was in the court file. But in presentence 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 sentences he was currently serving. As the State points out, this is not even the sentence advocated for in the letter, which further suggests the court did not rely on it.

Point denied.

The judgment is affirmed.

Kurt S. Ódenwald, P.J. and Gary M. Gaertner, Jr., J., concur.
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 Hied 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).