Rodger Sisemore vs. State of Missouri

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RODGER SISEMORE, ) ) Appellant, ) WD87891 ) v. ) OPINION FILED: ) STATE OF MISSOURI, ) February 24, 2026 ) Respondent. ) ) Appeal from the Circuit Court of Pettis County, Missouri Honorable Jeff A. Mittelhauser, Judge Before Division Three: Karen King Mitchell, Presiding Judge, Lisa White Hardwick, Judge, and Janet Sutton, Judge Rodger Sisemore (Sisemore) appeals the judgment of the Circuit Court of Pettis County (motion court), denying his amended Rule 29.15 1 motion for post-conviction relief after an evidentiary hearing. In two points on appeal, Sisemore contends the motion court clearly erred in denying the claim in his amended motion that his trial counsel was ineffective for failing to "contact" and call two witnesses, V.P. and C.S., at trial. Sisemore argues that there was no reasonable basis for trial counsel's lack of diligence in failing to interview these two witnesses and that there is a reasonable probability that the outcome of the trial would have been different if trial counsel had interviewed them. Finding no clear error, we affirm.

1 Unless otherwise noted, all rule references are to the Missouri Supreme Court Rules (2021).

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Factual and Procedural Background 2

Victim was born in September 2005. When Victim was around eight years old, Victim regularly visited the home of his mother's boyfriend's family, where he met Sisemore. In June 2013, Victim told a babysitter that Sisemore had touched his "butt hole and his pee-pee" over his clothes. Victim underwent a forensic interview and again stated those facts. In December 2018, Victim told a friend he had been sexually assaulted, which was overheard by Victim's sister. Victim's sister told their mother, who talked to Victim about it. Mother testified that Victim then provided more detail than he originally had about Sisemore's assault. Mother reported the incident to police and set up another forensic interview. During this interview, Victim disclosed that he had been sodomized by Sisemore when he was eight years old and provided a detailed account of the assault. The State charged Sisemore with the unclassified felony of first-degree sodomy for knowingly having deviate sexual intercourse with Victim, who was a child less than twelve years of age and incapable of consent. A jury trial was held at which Sisemore did not testify or present any evidence on his own behalf. The jury found Sisemore guilty of first-degree sodomy and the trial court sentenced him as a prior offender to life imprisonment. We affirmed Sisemore's conviction on direct appeal in State v. Sisemore, 646 S.W.3d 455 (Mo. App. W.D. 2022), and issued our mandate. Sisemore timely filed his pro se Rule 29.15 motion after the mandate was issued. The motion court appointed the public defender to

2 "On appeal from the motion court's denial of a Rule 29.15 motion, we view the facts in the light most favorable to the underlying criminal conviction as those facts bear upon the motion court's judgment." Verge v. State, 695 S.W.3d 290, 292 n.1 (Mo. App. W.D. 2024) (citation omitted).

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represent Sisemore, post-conviction counsel subsequently entered an appearance, and filed an amended motion. As we discuss infra, the amended motion was untimely filed. Sisemore's amended motion alleged, inter alia, that his trial counsel was ineffective for failing to contact and call C.S. and V.P. as witnesses because their testimony would have supported Sisemore's defense by establishing that Sisemore did not know Victim, that Victim and his family were known as "habitual liars," and that the allegations against him were fabricated. 3 The amended motion alleged that before trial, Sisemore asked his trial counsel to call them as witnesses and Sisemore advised his trial counsel of what he expected their testimony would be. The amended motion also alleged that the witnesses' testimony was important to Sisemore's defense because it would have called Victim's credibility into question and the testimony would have resulted in the jury doubting the Victim's testimony. The motion court held an evidentiary hearing on the amended motion. Trial counsel testified that he had been an attorney for twenty-three years and that he had conducted at least thirty jury trials before representing Sisemore. Trial counsel could not remember if Sisemore gave him C.S.'s name or requested that he contact her. When asked if he had ever met V.P., trial counsel replied, "I probably did," citing something from his case file but he could not recall whether Sisemore told him to talk to V.P. because she knew about Victim and Victim's mother's "reputation in the community for untruthfulness." Sisemore testified at the evidentiary hearing that he told his trial counsel to call those two witnesses, that counsel contacted the witnesses, but that trial counsel did not call them to testify

3 Sisemore's amended motion included a third witness, R.S., that he claimed his trial counsel was ineffective for failing to contact and call at trial. On appeal, Sisemore raises no claim of error related to R.S.

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at the trial. Specifically, Sisemore testified that he talked to trial counsel about C.S. and V.P. as potential witnesses and told trial counsel that these witnesses purportedly knew Victim and Victim's mother and that they could testify as to their reputation for untruthfulness. The motion court issued its findings of fact and conclusions of law denying Sisemore's amended motion. The motion court expressly found trial counsel's testimony credible. The motion court found that the witnesses Sisemore claimed his trial counsel should have called to testify did not appear at the motion hearing, that there was no evidence that the witnesses could have been located through a reasonable investigation, that they would have testified if called, or what their testimony would have been. The motion court further found to the extent that the witnesses would have testified that Victim and Victim's mother were "habitual liars," that such testimony would have been reputation evidence admissible for impeachment purposes, and that the failure to put on impeachment evidence could not be the basis for relief because impeachment does not establish a defense. The motion court denied the claim, concluding trial counsel was not ineffective for failing to present C.S. and V.P.'s testimony. Sisemore appeals. Additional facts necessary to the disposition of the case are included below as we address Sisemore's points on appeal. Standard of Review Our review of the motion court's ruling on a Rule 29.15 motion is limited to whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); Nelson v. State, 719 S.W.3d 729, 734 (Mo. banc 2025). The findings and conclusions are clearly erroneous when, after reviewing the entire record, we are "left with the definite and firm impression that a mistake has been made." Id. (quoting Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024)). We presume the motion court's findings are correct. Id. Additionally, a movant bears the

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burden of proving the asserted "claims for relief by a preponderance of the evidence." Rule 29.15(i). Legal Analysis Before we can address the merits of Sisemore's claims on appeal, we must first address his contention that we should remand for an abandonment hearing if we conclude his amended motion was untimely. Timeliness of Amended Motion Sisemore's amended motion was untimely. Sisemore was sentenced on April 9, 2021. Sisemore appealed his conviction and sentence to this Court and we issued our mandate on July 13, 2022. He filed his pro se motion for post-conviction relief on August 5, 2022, counsel was appointed on August 29, 2022, and appointed counsel filed an amended motion 120-days later on December 27, 2022, without requesting any extensions of time. Because Sisemore appealed his conviction, the version of Rule 29.15 in effect at the time of his sentencing 4 directed that " an amended motion must be filed within 60 days of the earlier of both: (1) the date the mandate issues from the court of appeals, and (2) appointment of counsel or entry of appearance on behalf of the movant by any counsel who is not appointed." Scott v. State, 719 S.W.3d 723, 727 (Mo. banc 2025) (citing Rule 29.15(g)). "Rule 29.15(g) also permitted an extension of this deadline, with no extension to exceed 30 days individually and the total of all extensions not to exceed 60 days." Id. Here, Sisemore's amended motion was not timely filed because it was filed more than sixty days after the earlier of both issuance of the

4 The Missouri Supreme Court has held that the applicable post-conviction rule is the one in effect at the time of the movant's sentencing. Scott v. State, 719 S.W.3d 723, 726-27 (Mo. banc 2025); Nelson v. State, 719 S.W.3d 729, 734 (Mo. banc 2025).

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mandate and entry of appearance by appointed counsel on Sisemore's behalf, and because appointed counsel did not seek or obtain an extension of the sixty-day deadline. See id. at 727. Usually, we must remand for an abandonment inquiry if an amended motion is untimely filed. See Watson v. State, 536 S.W.3d 716, 719 (Mo. banc 2018) (stating that "[t]he untimely filing of an amended motion by postconviction counsel creates a presumption of abandonment," requiring the motion court to conduct an abandonment inquiry). When the record however, unmistakably shows that appointed counsel abandoned a movant by failing to timely file an amended motion and that the failure was "not due to any negligence or intentional failure to act by [the movant]," remand is not required. Nelson, 719 S.W.3d at 735. In Nelson, appointed counsel included a "statement of timeliness" in the amended motion stating: Once a movant files a Form 40 after a direct appeal, the amended motion is due within 120 days of both the appointment of counsel and the issuance of the mandate. Rule 29.15(g). This Court appointed the Office of the Public Defender on March 8, 2022. Mr. Nelson's amended motion is due and timely filed on Wednesday, July 6, 2022, which is 120 days from March 8, 2022. Id. The Missouri Supreme Court determined that the record "plainly show[ed] appointed counsel's failure[] resulted from incorrectly determining which version of the rules to follow." Id. Here, like Nelson, the record unmistakably demonstrates that the amended motion's untimely filing was because of appointed counsel's application of the incorrect version of Rule 29.15. At the start of the evidentiary hearing on the amended motion, Sisemore's appointed counsel stated: [Sisemore] filed a direct appeal of this conviction in criminal case number 19PT- CR00744-01. The mandate issued on . . . June 21st, 2022. [Sisemore] timely filed his pro se Form 40 motion for post-conviction relief on July 13th, 2022. This was 23 days from the mandate. Counsel was appointed on August 29th, 2022, making the amended motion due on or before December 27th, 2022. The

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amended motion was timely filed, on that date, 120 days from appointment of counsel. Like Nelson, it is clear from Sisemore's a ppointed counsel's statement to the motion court that he applied the incorrect version of Rule 29.15(g) and thereby abandoned Sisemore by failing to timely file the amended Rule 29.15 motion. Thus, an abandonment inquiry is unnecessary on that issue. While the motion court erroneously determined that Sisemore's amended motion was timely, it held an evidentiary hearing and issued findings of fact and conclusions of law on the claims in Sisemore's amended motion. Therefore, remanding for the motion court to address the claims in the amended motion is likewise unnecessary. Accordingly, we will address the merits of Sisemore's claims on appeal. See id. ("Rather than waste time and effort remanding for abandonment hearings when abandonment is clear on the face of the record, or remanding for evidentiary hearings on claims that already have been heard at an evidentiary hearing and adjudicated, the only reasonable conclusion is . . . to reach the merits of [the] appeals without further delay."). Points One and Two In two points on appeal, Sisemore contends the motion court clearly erred in denying the claim in his amended motion that his trial counsel was ineffective for failing to "contact" two witnesses, V.P. and C.S. 5 Sisemore argues that there was no reasonable basis for trial counsel's lack of diligence in failing to interview these two witnesses and that there is a reasonable

5 Sisemore's points on appeal phrase his claims of ineffective assistance of counsel as a failure to contact and investigate witnesses. Sisemore criticizes the motion court for evaluating his claim as failing to call a witness, arguing that this is a distinct claim. However, the amended motion specifically alleges in claim 8(a) that his "[t]rial counsel failed to contact and call as witnesses [C. S.], [ V. P.] , and [R. S.], whose testimony would have supported movant's defense." The failure to call these individuals as witnesses was clearly encompassed within the same claim in the amended motion.

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probability that the outcome of the trial would have been different if trial counsel had interviewed them. To be entitled to post-conviction relief based on ineffective assistance of counsel, the movant must satisfy Strickland's two-prong test. Nelson, 719 S.W.3d at 736. The movant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the movant. Id.; Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish that counsel's performance was deficient, the movant must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The movant " must overcome the strong presumption that trial counsel's conduct was reasonable and effective." Hosier v. State , 593 S.W.3d 75, 81 (Mo. banc 2019) (citation omitted). "To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. (citation omitted). Besides showing deficient performance, a movant must also show that he was prejudiced by the deficiency, meaning that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Flaherty, 694 S.W.3d at 422 (quoting Strickland, 466 U.S. at 694). See also Christian v. State, 455 S.W.3d 523, 526 (Mo. App. W.D. 2015). "If a movant fails to establish both deficient performance and resulting prejudice, [the movant] has failed to prove a right to post-conviction relief." Christian, 455 S.W.3d at 526. "The court may not need to address both prongs [of the Strickland test] if the movant has failed to make a sufficient showing on one." Id. (quoting Taylor v. State, 382 S.W.3d 78, 81 (Mo. banc 2012)). See also Sprofera v. State, 613 S.W.3d 822, 827 (Mo. App. W.D. 2020).

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"Regarding a claim of ineffective assistance of counsel for failing to investigate and call witnesses, [a] [m]ovant must plead and prove that: (1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have produced a viable defense." Johnson v. State, 406 S.W.3d 892, 908 (Mo. banc 2013) (emphasis added) (citation omitted). See also Hollings v. State, 662 S.W.3d 821, 829 (Mo. App. E.D. 2023); Jones v. State, 519 S.W.3d 879, 885 (Mo. App. E.D. 2017). "When the testimony of the witness would negate an element of the crime for which a movant was convicted, the testimony provides the movant with a viable defense." Lewis v. State, 694 S.W.3d 138, 143 (Mo. App. E.D. 2024) (citation omitted). As to the first factor, Sisemore's trial counsel testified at the evidentiary hearing that he did not have an independent recollection of Sisemore giving him C.S.'s name and requesting that he contact her. Similarly, trial counsel testified that he did not have any memory of Sisemore telling him that he wanted counsel to talk to V.P. Although Sisemore testified that he informed trial counsel that V.P. and C.S. would be favorable witnesses for the defense because they allegedly "knew" Sisemore had never met Victim and that Victim and his mother were known for being untruthful, the motion court was not required to accept Sisemore's testimony at the motion hearing as true. See Cooper v. State, 621 S.W.3d 624, 630 (Mo. App. W.D. 2021); Hudson v. State, 563 S.W.3d 834, 840 (Mo. App. E.D. 2018). In fact, in its judgment, the motion court expressly found trial counsel's testimony to be credible. On appeal, we defer to the motion court's credibility determinations. Cooper, 621 S.W.3d at 630; Hudson, 563 S.W.3d at

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As to the second and third factors, there was no evidence presented that either C.S. or V.P. could have been located through a reasonable investigation, or that they would have testified if called at trial. Finally, regarding the fourth factor, neither V.P. nor C.S. testified at the evidentiary hearing, 6 and Sisemore did not introduce deposition testimony from either. Therefore, "there is no direct evidence as to what, if anything [they] would have testified to at trial." State v. Dees, 916 S.W.2d 287, 302 (Mo. App. W.D. 1995). Mere conjecture or speculation about a witness's potential testimony does not sufficiently establish the required prejudice under Strickland. 7 Id.; Hollings, 662 S.W.3d at 830; Perkins v. State, 680 S.W.3d 171, 175-76 (Mo. App. E.D. 2023). A "[m]ovant's failure to introduce sufficient supporting evidence at the evidentiary hearing is fatal to his post-conviction claim." Perkins, 680 S.W.3d at 176 (citation omitted). Therefore, in accordance with the motion court's credibility finding and the fact that it did not have to believe Sisemore's testimony that he told his trial counsel to contact those two witnesses and Sisemore's speculation about what these witnesses would have testified to, the motion court did not clearly err in denying Sisemore's claim in his amended motion that his trial counsel was ineffective for failing to "contact" and call C.S. and V.P. as trial witnesses. Points one and two are denied.

6 According to Sisemore's testimony, C.S. was deceased by the time of the evidentiary hearing. 7 Additionally, Sisemore's testimony indicates that he intended to call these witnesses to impeach the Victim and his mother based on their reputation for untruthfulness in the community. The movant has the burden of establishing that the impeachment would have offered a defense to the charged crimes. Anderson v. State, 84 S.W.3d 501, 505 (Mo. App. S.D. 2002). "The proposed witnesses prospective testimony goes only to impeachment of [witness]. These facts do not warrant relief because they do not provide movant with a defense, but merely impeach the State's witnesses." Lane v. State, 778 S.W.2d 769, 771 (Mo. App. E.D. 1989) (citation and internal quotation marks omitted).

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Conclusion The motion court's judgment is affirmed. _____________________________ Janet Sutton, Judge

Karen King Mitchell, P.J., and Lisa White Hardwick, J. concur.