               SUPREME COURT OF MISSOURI
                                            en banc

STATE ex rel.                                   )            Opinion issued January 15, 2019
MARIO RICHARDSON,                               )
                                                )
               Relator,                         )
                                                )
v.                                              )            No. SC97179
                                                )
THE HONORABLE                                   )
BRIAN MAY,                                      )
                                                )
               Respondent.                      )


                      ORIGINAL PROCEEDING IN PROHIBITION

       Mario Richardson filed a petition for a writ seeking to prohibit the Honorable Brian

May ("Respondent") from proceeding with any action other than vacating an order denying

Richardson's application for change of judge pursuant to Rule 32.07. 1 Rule 32.07(b) requires

the application for change of judge to be filed within 10 days of "the initial plea" in a criminal

case or within 10 days of "the designation" of the trial judge. Richardson did not timely file

his application for change of judge. The preliminary writ of prohibition is quashed.




1
 Richardson filed a "motion" for change of judge. Rule 32.07 refers to "the application" for change
of judge. This Court will utilize the terminology in Rule 32.07 and refer to Richardson's filing as his
"application" for change of judge.
                             Factual and Procedural Background

       In July 2016, the state charged Richardson in Cause No. 16SL-CR04006-01 with

unlawful possession of a firearm, § 571.070, second-degree assault of a law enforcement

officer, § 565.082, RSMo 2000, and felony resisting arrest, § 575.150. 2 The case was assigned

to Judge Steven Goldman. On July 12, 2016, Richardson was arraigned and entered his initial

plea of not guilty in Cause No. 16SL-CR04006-01. Following Judge Goldman's retirement,

Respondent was assigned by administrative order to preside over Cause No. 16SL-CR04006-

01 effective November 7, 2016. In July 2017, Respondent set the case for a jury trial to begin

on April 2, 2018.

       On March 29, 2018, the state filed a superseding indictment in Cause No. 16SL-

CR04006-01, charging Richardson with two counts of possession of a controlled substance,

§ 195.202, in addition to the charges in the original indictment. 3 On April 12, 2018,

Richardson waived arraignment and pleaded not guilty to the charges in the superseding

indictment.

       On April 16, 2018, Richardson filed an application for change of judge pursuant to

Rule 32.07. Respondent denied the application and scheduled the case for trial to begin July

9, 2018. Richardson filed a petition for writ of prohibition.




2
  All statutory citations are to RSMo 2016 unless otherwise provided. Section 565.082 was repealed
effective January 1, 2017.
3
  The indictment specified it was "to supersede [the] indictment previously filed." It then listed all
five charges together without distinguishing the new and old charges.
                                                  2
                                     Standard of Review

       This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4.1.

"A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a

lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction

or abuse of discretion where the lower court lacks the power to act as intended; or (3) where

a party may suffer irreparable harm if relief is not granted." State ex rel. Fite v. Johnson, 530

S.W.3d 508, 510 (Mo. banc 2017) (internal quotation omitted).

                               The Application Was Untimely

       Rule 32.07 provides for an automatic change of judge in felony and misdemeanor

cases. A timely application for change of judge deprives the court of authority to do anything

other than grant the application. State ex rel. Manion v. Elliott, 305 S.W.3d 462, 463 (Mo.

banc 2010). An untimely application should be denied. Id.

       Rule 32.07(b) provides:

       In felony and misdemeanor cases the application must be filed not later than ten
       days after the initial plea is entered. If the designation of the trial judge occurs
       more than ten days after the initial plea is entered, the application shall be filed
       within ten days of the designation of the trial judge or prior to commencement
       of any proceeding on the record, whichever is earlier.

(Emphasis added.)

       Richardson argues his application was filed timely within 10 days of his "initial plea"

to the new charges in the superseding indictment. Alternatively, Richardson asserts his

motion was filed timely within 10 days of "the designation" of Respondent as the trial judge

on April 12, 2018, when Richardson waived arraignment on the new charges in the

superseding indictment.

                                                3
       "This Court interprets its rules by applying the same principles used for interpreting

statutes." Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011). "Consequently, [t]his

Court's intent is determined by considering the plain and ordinary meaning of the words in

the Rule." Id. (internal quotation omitted). The plain and ordinary meaning of an undefined

term is derived from the dictionary. Mantia v. Mo. Dep't of Transp., 529 S.W.3d 804, 809

(Mo. banc 2017).

A. Initial Plea

       The word "initial" means "of or relating to the beginning: marking the commencement:

incipient, first." Merriam Webster 3rd New International Dictionary 1163 (2002). Following

the plain language of Rule 32.07(b), the "initial plea" is the first plea "in felony and

misdemeanor cases." By definition, there can be only one "initial plea" in a criminal case.

       Richardson entered the initial plea in his criminal case on July 12, 2016, when he

pleaded not guilty. Richardson filed his application for a change of judge on April 16, 2018,

more than 600 days after he entered "the initial plea" in his criminal case.

       Like the dissent, Richardson argues he entered an "initial plea" to the new charges in

the superseding indictment, triggering a second opportunity to file an application for change

of judge pursuant to Rule 32.07. Rule 32.07(b), however, expressly refers to "cases," not

"charges." The Rule refers singularly to "the application" and requires it to be filed within 10

days of the single "initial plea" in the case. Richardson's plea of not guilty to the new charges

was not "the initial plea" in his criminal case.

       This conclusion is confirmed by the 1993 amendment to Rule 32.07. In addition to

shortening the time period for filing an application for change of judge, the amendment

                                                   4
eliminated "arraignment" as a triggering event for an application for change of judge and

replaced it with "the initial plea." 4 The clear intent of the amendment was to require the

application for change of judge to be filed at the outset of the case to avoid undue delay in the

resolution of criminal cases. 5 The fact Richardson waived arraignment on new charges in a

superseding indictment in April 2018 does not negate the fact he previously entered "the initial

plea" in his criminal case in July 2016. Richardson did not file his application for change of

judge within 10 days of "the initial plea" in his criminal case. 6

B. Designation of the Trial Judge

       Alternatively, Richardson asserts his motion was timely filed within 10 days of "the

designation of the trial judge."         Richardson argues the April 12, 2018, arraignment

memorandum designated Respondent as the trial judge because it states "Cause assigned to

Division 1 for hearing and determination."

       The relevant definition of the word "designate" is "to name esp. to a post or function."

Merriam Webster 3rd New International Dictionary 612 (2002). Therefore, "the designation"


4
   Prior to 1993, Rule 32.07(c) provided:
         In felony cases the application must be filed not later than thirty days after
         arraignment if the trial judge is designated at arraignment. If the trial judge is not
         designated at arraignment, the application must be filed no later than thirty days after
         the designation of the trial judge and notification to the parties or their attorneys. If
         the designation of the trial judge occurs less than thirty days before trial, the
         application must be filed prior to commencement of any proceeding on the record.
(Emphasis added.)
5
  The dissent correctly notes one purpose of Rule 32.07 is to avoid undue delay. The dissent's logic
is a recipe for gamesmanship and delay, as it would require the circuit court to order a change of judge
on the request by counsel for either party every time new charges are added.
6
  The dissent's observation that Rule 32.07(b) provides an "unfettered" right to a change of judge is
irrelevant to determining whether the right attaches in this case. The right is "unfettered" only if it
attaches in the first place. Because Richardson did not file his application for change of judge within
10 days of his initial plea in the criminal case, he has no "unfettered" right to a change of judge
pursuant Rule 32.07(b).
                                                   5
of the trial judge is completed when the judge is "named" or assigned to perform a judicial

function in the case.

       Respondent was designated as the trial judge in November 2016, when he was first

assigned to preside over Richardson's criminal case. Nothing shows Respondent's designation

as the trial judge was rescinded. Instead, Respondent continued to preside over the case,

conferring with counsel just days prior to the superseding indictment. Further, St. Louis

County Local Rule 36.1 provides "All civil and criminal jury cases will be set for trial by the

judge of the division to which the case [is] assigned." Respondent was assigned as the trial

judge in November 2016 and set the case for a jury trial to begin in April 2018. Richardson's

April 2018 application for change of judge was not filed within 10 days of the November

2016 designation of Respondent as the trial judge for Richardson's criminal case.

                                          Conclusion

       Richardson did not file his application for change of judge within 10 days of "the initial

plea" or "the designation of the trial judge." Respondent properly denied Richardson's

application for change of judge. The preliminary writ of prohibition is quashed.



                                                          ___________________________
                                                          Zel M. Fischer, Chief Justice


Wilson, Powell and Breckenridge, JJ., concur;
Russell, J., dissents in separate opinion filed;
Draper and Stith, JJ., concur in opinion of Russell, J.




                                               6
             SUPREME COURT OF MISSOURI
                                        en banc
STATE ex rel.                                )
MARIO RICHARDSON,                            )
                                             )
              Relator,                       )
                                             )
v.                                           )           No. SC97179
                                             )
THE HONORABLE                                )
BRIAN MAY,                                   )
                                             )
              Respondent.                    )

                                DISSENTING OPINION

       Respectfully, I dissent. The “initial plea” language in Rule 32.07 refers to the first

plea to each charge rather than to the case as a whole. A defendant cannot enter a plea to

a count for which he has not yet been charged. Accordingly, Richardson’s application for

change of judge was timely. I would make the preliminary writ permanent and require

Respondent, as a result of the later-added charges, to grant Richardson’s application for

change of judge.

       This Court is to liberally construe Rule 32.07 in favor of the right to disqualify a

judge. State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986). “This is a

highly prized right which [this Court has] liberally granted.” State ex rel. Dir. of

Revenue, State of Mo. v. Scott, 919 S.W.2d 246, 247 (Mo. banc 1996). “It has been
described as a right that is virtually unfettered.” Id. (internal quotation omitted). The

purpose of Rule 32.07 is “to assure fairness to litigants in exercising their privilege to

disqualify a trial judge, while, at the same time, avoiding undue delay in the

proceedings.” State ex rel. Mountjoy v. Bonacker, 831 S.W.2d 241, 244 (Mo. App.

1992).

         I disagree with the principal opinion’s interpretation that “initial plea” refers only

to the case as a whole rather than to the charge itself. The principal opinion emphasizes

the language introducing Rule 32.07’s subdivision (b), which begins: “In felony and

misdemeanor cases ....” Rule 32.07(b). But the introductory language in Rule 32.07(b)

merely indicates the 10-day time limit for filing an application for change of judge

applies both to felony cases and misdemeanor cases. This is evidenced by the 1993

amendment to Rule 32.07. Prior to the amendment, Rule 32.07 provided two different

timelines for filing an application for change of judge, depending on whether the

defendant was charged with a misdemeanor or felony offense:

         (b) In misdemeanor cases the application must be filed not later than ten days
         before the date set for trial ....
         (c) In felony cases the application must be filed not later than thirty days after
         arraignment if the trial judge is designated at arraignment ....

Rule 32.07(b)-(c) (1982) (emphasis added).

         The language in this older version of Rule 32.07 clearly provided that “cases”

signified which of two deadlines the defendant had to meet to file an application based on

whether the defendant was charged with a misdemeanor or felony offense. And when the

rule was amended, sections (b) and (c) were essentially combined to provide for one


                                                 2
10-day deadline, regardless of the nature of the case: “In felony and misdemeanor

cases ....” Rule 32.07(b) (emphasis added). The drafters kept this language as they

combined the two subsections with the intention of streamlining the rule’s timelines.

Nothing in the plain language indicates that this merger was intended to create limiting

language. This Court “interprets its rules by applying the same principles used for

interpreting statutes.” Spence v. BNSF Ry. Co., 547 S.W.3d 769, 774 (Mo. banc 2018). 1

In looking at the evolution of the language of Rule 32.07 with this Court’s 1993

amendment and in the context in which the amendment was made, there was no intent to

limit a defendant’s “virtually unfettered” right to a change of judge in a case.

       If the drafters of Rule 32.07 intended to limit “initial plea” to the first plea

occurring in any given case, they could have simply done what the principal opinion has

done and placed the language “in felony and criminal cases” after the phrase “initial

plea.” Such a placement would indicate “initial plea” referred simply to the first plea

occurring in the case as a whole. But this language was not placed after “initial plea” and

does not have the limiting effect the principal opinion purports to assign to it.

Accordingly, I do not agree with the principal opinion’s conclusion that “initial plea”

refers only to the very first plea entered in a criminal case, regardless of what occurs after

that very first plea.




1
  “When interpreting a statute, the primary goal is to give effect to legislative intent as reflected
in the plain language of the statute.” Stiers v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc
2016) (quoting State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010)).
                                                  3
       To ascertain the meaning of “initial plea,” a full reading of Rule 32.07 is required.

The rule provides:

       (a) Except as provided in Rule 32.06, a change of judge shall be ordered in
       any criminal proceeding upon the timely filing of a written application
       therefor by any party. The applicant need not allege or prove any reason for
       such change. The application need not be verified and may be signed by any
       party or an attorney for any party.
       (b) In felony and misdemeanor cases the application must be filed not later
       than ten days after the initial plea is entered. If the designation of the trial
       judge occurs more than ten days after the initial plea is entered, the
       application shall be filed within ten days of the designation of the trial judge
       or prior to commencement of any proceeding on the record, whichever is
       earlier.

(Emphasis added). Simply put, subdivision (a) provides when a change of judge shall be

ordered – in any criminal proceeding upon a timely application – and subdivision (b)

defines when an application for change of judge is timely.

        With no definition of “criminal proceeding” in Rule 32.07, the dictionary

definition is enlightening. “Criminal proceeding” is defined as “One instituted and

conducted for the purpose ... [of] fixing the guilt of a crime already committed and

punishing the offender;” “some step taken before a court against some person or persons

charged with some violation of the criminal law.” Black’s Law Dictionary at 374 (6th ed.

1991). 2 When new charges are added to an existing case, a new arraignment is necessary

and the defendant must enter a plea as to the new charges. See State v. Sexton, 929

S.W.2d 909, 918 (Mo. App. 1996) (“[A] remand to the Circuit Court does not constitute

the filing of a new charge requiring appellant to be arraigned and an ‘initial’ plea to be


2
 Dictionary definitions from the time Rule 32.07 was written are used to ascertain the meaning
of words as the drafters intended. Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993).
                                               4
entered to a new charge.”) (emphasis added). If a proceeding may be defined as “some

step taken before a court” against a criminal defendant, Richardson’s required additional

arraignment and entering of pleas on the new charges would be considered a new

“proceeding” within the action as a whole. It follows that the addition of the new

charges, which triggers a new, distinct “proceeding” under Rule 32.07, would allow a

criminal defendant an opportunity to file a timely application for a change of judge within

10 days from that new arraignment and the accompanying new initial plea.

       The critical characteristic is the addition of new charges to the indictment. If the

superseding indictment had not added any new charges but, instead, had simply made a

mere amendment to the indictment, keeping the charges intact, no further arraignment

would be required on the superseding indictment. See State v. Hill, 396 S.W.2d 563, 566

(Mo. 1965) (“[S]ince the amendment did not charge defendant with any separate or

different offense ... it was not necessary to show any further arraignment.”). In other

words, there would be no additional necessary step – no additional necessary criminal

proceeding –to continue with the criminal case, and no need for a renewed 10-day

window to file an application for a change of judge.

       Indeed, Missouri courts have consistently noted a distinction between a mere

amendment to an indictment and the addition of new charges to a case. See Sexton, 929

S.W.2d at 918; see also Hill, 396 S.W.2d at 566; Bass v. State, 807 S.W.2d 523, 527

(Mo. App. 1991) (“Because the amended information did not charge a different offense

and because the movant’s defense was not prejudiced by the amendment, there was no

need for the movant to be given a new preliminary examination and a new

                                             5
arraignment.”) (emphasis added). This Court’s rules mirror this distinction, allowing an

information to be amended “at any time before verdict or finding if (a) no additional or

different offense is charged, and (b) a defendant’s substantial rights are not thereby

prejudiced.” Rule 23.08 (emphasis added). In the instant case, because there was a

superseding indictment filed that included new charges and thereby required a new

arraignment – and, for the first time, a plea to the new charges – a new “initial plea” was

required for the new charges. 3

       As stated above, the purpose of Rule 32.07 is to “assure fairness to litigants in

exercising their privilege to disqualify a trial judge while, at the same time, avoiding

undue delay in the proceedings.” Mountjoy, 831 S.W.2d at 244. The principal opinion

does not assure fairness to Richardson in exercising his right to disqualify a trial judge. 4

A defendant cannot truly – or fairly – make a decision to file an application for a change

of judge without a full understanding of what charges lie ahead.



3
  This interpretation comports with existing Missouri law. Both this Court’s rules and this state’s
statutory law mandate that, if a second indictment is filed, it shall supersede the first and the first
indictment shall be quashed. “If there are two or more indictments or informations pending
against the defendant for the same offense in the same county, the indictment or information last
filed shall supersede all indictments or informations previously filed.” Rule 23.10; see also
section 545.110, RSMo 2016 (“If there be at any time pending against the same defendant two
indictments for the same offense, or two indictments for the same matter, although charged as
different offenses, the indictment first found shall be deemed to be suspended by such second
indictment, and shall be quashed.”). Accordingly, the second indictment must have some effect
on the first. When it adds new charges – requiring a new arraignment and an original plea to
those new charges – it creates a need for a new “initial plea.”
4
  Moreover, the State’s argument that this interpretation would cause undue delay and hinder
judicial efficiency is not well taken. Here, the State waited almost two years to file the
additional charges against Richardson, and, in turn, pushed back the original trial date of its own
volition. Because this interpretation does not result in any undue delay in this case, it further
advances the purposes of Rule 32.07.
                                                  6
       A defendant cannot enter a plea to a crime with which he has not yet been

charged. And, after all, a defendant must plead as to each charge, not just to the case in

general. See Rule 24.01 (“Arraignment shall be conducted in open court and shall consist

of reading the indictment or information to the defendant or stating to him the substance

of the charge and calling on him to plead thereto.”); see also Black’s Law Dictionary at

1151 (“Criminal pleas” defined as “The defendant’s response to a criminal charge (guilty,

not guilty, or nolo contendere).”). Richardson’s plea to the first set of charges was

separate and distinct from his initial plea to the later charges and should be treated as

such when applying Rule 32.07.

       The principal opinion, in effect, may result in prosecutors filing minor charges

against a defendant, waiting for the time to file an application for change of judge to

expire, and then filing a superseding indictment adding more serious offenses, leaving the

defendant with no option to change judge even though the nature of the case may be very

different than it was at its outset. In contrast, the State will have an opportunity to obtain

a change of judge, as it can often dismiss nolle pros and refile a case in the hopes of

having a different judge assigned to the case. This imbalance would not be eliminated by

this dissent’s interpretation of Rule 32.07, but would, at the very least, offer more

assurance to defendants of their ability to exercise their right to change of judge.

       The principal opinion perpetuates an unlevel playing field in favor of the State as

the State will continue to have the right to a change of judge by nolle prossing the

charges while the defendant’s hands are tied when new charges are filed. Allowing a

defendant to seek a change of judge after new charges are filed will level the playing

                                              7
field, as that opportunity is already available to the State. It would promote fairness to

litigants, one of the core purposes of Rule 32.07. For these reasons, I believe “initial

plea” cannot be limited to the very first plea in each criminal case, regardless of

subsequent events, as the “initial plea” refers to the first plea as to each count with which

the defendant is charged. 5

       As such, a new 10-day window was created for filing an application for change of

judge upon the filing of the superseding indictment with the new charges, which required

further necessary proceedings in the form of a new arraignment. Richardson’s

application, filed four days after his initial plea on the new charges, was well within this

requisite timeframe.

       When the judge fails to grant a timely filed application for change of judge,

prohibition is the proper remedy. Raack, 720 S.W.2d at 943. “The filing of a timely

application for change of judge deprives the court of further authority to do anything in

the case other than grant the application.” State ex rel. Manion v. Elliott, 305 S.W.3d

462, 463 (Mo. banc 2010). I would make the preliminary writ permanent.

       For these reasons, I respectfully dissent.




                                                     ______________________________
                                                     Mary R. Russell, Judge

5
  In a case such as this one, it would be up to the prosecutor’s discretion whether to dismiss the
additional charges and refile them as a separate case. See State v. Davis, 32 S.W.3d 603, 612
(Mo. App. 2000) (“[T]he prosecutor has unfettered discretion either to prosecute or to nolle pros
a case before return of a verdict.”).
                                                8
