Background
Richard L. Kerksiek was convicted of first-degree statutory sodomy and incest involving his nine-year-old daughter. The jury heard the victim’s account, evidence that she disclosed the abuse multiple times, and evidence that her laptop contained late-night internet searches involving sexual activity between fathers and daughters. Kerksiek received consecutive sentences of twenty years for statutory sodomy and seven years for incest.
After his convictions were affirmed on direct appeal, Kerksiek filed a timely pro se Rule 29.15 motion alleging ineffective assistance of trial counsel. His retained post-conviction counsel later filed an amended motion adding a claim that trial counsel should have objected to evidence of similar abuse alleged to have occurred in Morgan County. Following an evidentiary hearing, the motion court denied relief.
The Court’s Holding
The Court of Appeals affirmed. It first held that the amended motion was untimely because counsel entered an appearance on October 19, 2023, making the amended motion due by December 22, 2023, but did not file it until February 16, 2024. The added claim concerning Morgan County evidence was a distinct claim based on a separate alleged omission by trial counsel, not merely a refinement of the timely claim concerning the verdict directors. That added claim therefore was waived.
The court also rejected Kerksiek’s timely claims. He could not establish prejudice from counsel’s failure to disclose his father, R.R., as a defense witness because R.R.’s proposed testimony was not reasonably likely to change the verdict and potentially strengthened the inference that Kerksiek made the incriminating laptop searches. The court further held that the jury-instruction issue could not be relitigated in post-conviction proceedings because the direct appeal had already determined that the MAI-compliant verdict directors contained no error, plain or otherwise.
Key Takeaways
- An untimely Rule 29.15 amended motion generally waives a newly added claim, even when the new claim concerns subject matter also implicated by a timely claim.
- Kerksiek failed to show Strickland prejudice from the exclusion of R.R.’s testimony because the testimony was not reasonably likely to produce a different result and could have harmed the defense.
- An issue decided adversely on direct appeal cannot be repackaged as an ineffective-assistance claim in a post-conviction proceeding when the appellate court previously found no underlying error.
Why It Matters
The decision underscores Missouri’s strict enforcement of deadlines for amended post-conviction motions and the need to plead each alleged act or omission of counsel timely and distinctly. A shared factual theme does not transform separate claims of ineffective assistance into a single claim.
It also illustrates the limits on using Rule 29.15 to revisit matters resolved on direct appeal. Where an appellate court has already found no underlying trial-court error—or no reversible prejudice—the same issue ordinarily cannot support later post-conviction relief.