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 
2

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). 
3

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 
4

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 
5

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 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 
6

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.