Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of St. Louis County. Hon. Maura B. McShane.
FOR APPELLANT: Jessica Hathaway, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General, Karen L. Kramer, Asst. Attorney General, Jefferson City, MO.
ROBERT G. DOWD, JR., Judge. Kurt S. Odenwald, P.J., and Gary M. Gaertner, Jr., J., concur.
ROBERT G. DOWD, JR., Judge.
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. 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, 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. 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 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 ...