STATE OF MISSOURI ex rel. CATHERINE HANAWAY, Relator v. THE HONORABLE JAMES R. BICKEL, ET AL., Respondents

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STATE OF MISSOURI ex rel. CATHERINE HANAWAY,

Relator, v. THE HONORABLE JAMES R. BICKEL, ET AL.

Respondents.

No. SD39245

ORIGINAL PROCEEDING IN PROHIBITION PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT

On November 4, 2025, this Court entered a Preliminary Writ of Prohibition directing the Honorable James R. Bickel ("Respondent") to refrain from proceeding in the Circuit Court of Dade County's case number 25DD-CR00065 ("the underlying case") 1 except to vacate the Honorable Brandon B. Fisher's ("Judge Fisher's") September

1 The first docket entry in case number 25DD-CR00065 states, in part: "Please see case numbers 21CD-CR000485, 21CD-CR000485-01, and 23DD-CR00004 for prior docket entries." Our reference to the underlying case herein includes all related cases, in both Cedar and Dade Counties.

In Division

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24, 2025 Order ("the Order") which granted Defendant David Smock's ("Defendant's") Motion for Change of Judge, and to return the underlying case to the Honorable David R. Munton ("presiding judge") for reassignment back to Judge Fisher. The preliminary writ is made permanent. Factual Background and Procedural History The underlying case initially charged Defendant with one count of sexual misconduct involving a child, four counts of statutory sodomy in the first degree, one count of attempted statutory sodomy in the second degree, one count of child molestation in the fourth degree, and one count of stalking in the first degree. All charges involved one minor victim. On December 23, 2021, the State filed an Application for Change of Judge pursuant to Rule 32.06. 2

On February 22, 2022, the State filed an Amended Felony Complaint against Defendant which included four additional charges involving a second minor victim. In April of that year, a preliminary hearing was held on the amended complaint, and Defendant's case was bound over for a first appearance before the circuit court judge. In May of 2022, the State filed an Application for Change of Judge pursuant to Rule 32.07, and the presiding judge granted the motion and transferred the case to Judge Fisher on May 18, 2022. On July 22, 2022, Defendant filed a Motion for Change of Venue pursuant to Rule 32.03. On December 19, 2022, Judge Fisher granted the motion and transferred venue to

2 Unless otherwise noted, all rule references are to Missouri Court Rules (2025).

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Dade County "[b]y agreement of the parties." Defendant did not file an application for change of judge at the time he filed his Motion for Change of Venue. Dade County received the case on January 5, 2023, and assigned it a new case number, but Judge Fisher remained the judge on the case. On May 5, 2023, the State filed a Second Amended Felony Information against Defendant which included new allegations involving a third minor victim. On May 7, 2025, Judge Fisher transferred the case back to the associate division of the Cedar County circuit court for a preliminary hearing on the new charges. The docket entry associated with that action states that, if the case is bound back over to circuit court, it should be sent back to Dade County. On May 23, 2025, Defendant filed a Motion for Change of Judge in the associate division of the Cedar County circuit court. 3 That motion was granted, and the case was assigned to the Honorable James V. Nichols. Before the preliminary hearing was held, on August 22, 2025, the State filed its Third Amended Felony Information. On August 28, 2025, the associate circuit judge found probable cause existed on the three new charges at issue. On August 29, 2025, the presiding judge

3 While Defendant's motion cited Rule 32.07, he should have cited Rule 32.06 since he made his motion before the second preliminary hearing. Compare Rule 32.06(a) ("A change of judge shall be ordered before a preliminary examination upon the filing of a written application therefor not later than ten days prior to the initial date set for examination or within ten days of the designation of the judge, whichever is later; provided that the change of judge shall be requested prior to the commencement of the preliminary examination."), with Rule 32.07(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.")

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ordered the case transferred to Dade County and specifically to Judge Fisher "as was previously agreed by parties." On September 3, 2025, Defendant filed a Motion for Change of Judge pursuant to Rule 32.07. After hearing argument from the parties, Judge Fisher granted Defendant's motion on September 24, 2025. We issued our preliminary writ on November 4, 2025, and we now make that writ permanent. Standard of Review This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4.1. Prohibition is an extraordinary remedy this Court issues with "great caution and forbearance and only in cases of extreme necessity." State ex rel. T.J. v. Cundiff, 632 S.W.3d 353, 355 (Mo. banc 2021) (quoting State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991)). A writ of prohibition is discretionary. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). A writ of prohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party. State ex rel. Becker v. Wood, 611 S.W.3d 510, 513 (Mo. banc 2020).

State ex rel. Hutchinson v. Manansala, 674 S.W.3d 811, 813 (Mo. App. E.D. 2023). A writ of prohibition is proper when a circuit court improperly sustains a motion for change of judge. State ex rel. Bailey v. Pierce, 690 S.W.3d 190, 192 (Mo. banc 2024). Analysis Relator's first point on appeal argues that Relator is entitled to an order prohibiting Respondent from taking any action on the underlying case, other than issuing an order returning the case to the presiding judge to be reassigned to Judge Fisher, "because [Judge Fisher] exceeded [his] authority in granting [Defendant's] untimely motion for change of judge, in that Rule 32.08 required [Defendant] to join both his request for

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change of judge and his request for a change of venue in a single application[,]" and Defendant failed to do so. We agree. Rule 32.07 concerns the change of judge and states that "[e]xcept 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." Rule 32.07 further provides that an application for a change of judge must be filed not later than 10 days after the initial plea is entered, or in the case where "the designation of the trial judge occurs more than [10] days after the initial plea is entered, the application shall be filed within [10] days of the designation of the trial judge or prior to commencement of any proceedings on the record, whichever is earlier." Regarding change of venue, Rule 32.02 provides as follows: If the parties file a stipulation agreeing upon the transfer of a criminal proceeding triable by jury to a designated court of competent jurisdiction, the court shall order the criminal proceeding transferred to such court. The stipulation shall be filed not later than [10] days after the initial plea is entered....Thereafter, no change of venue or change of judge shall be granted to any party stipulating to the change except as provided in Rule 32.09(c) or Rule 32.10.

Rule 32.08(a), regarding both change of venue and change of judge, states as follows: (a) If a party requests and obtains either a change of venue or a change of judge, except a change of judge pursuant to Rule 32.06, that party shall not be granted any additional change thereafter except as provided in Rule 32.09(c) or Rule 32.10. A defendant who desires both a change of venue and a change of judge, except a change of judge pursuant to Rule 32.06, must join both requests in a single application.

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Rule 32.09(c), referenced above, concerns a change of judge for reasons of fundamental fairness, and Rule 32.10 applies to judicial disqualifications. Defendant does not contend that either rule applies here. Defendant did receive a change of judge pursuant to Rule 32.06(a), prior to the preliminary hearing, which does not affect our analysis here. Rule 32.09. The issue before us is whether, because Defendant moved for and received a change of venue in circuit court in December of 2022, but failed to file a motion for change of judge at the same time, in accordance with Rule 32.08(a), Defendant is then later entitled to an additional change of judge. We are compelled to answer this question in the negative. Rules 32.02 and 32.08(a) clearly state that a party must join both a request for a change of judge and a change of venue in one application. The request must be made within 10 days of the initial plea, 10 days from the designation of the trial judge, or before any proceedings take place on the record – whichever is earlier. Rule 32.07(b). Defendant argues, without citation to supporting legal authority, that Rule 32.08(a) does not apply in this case because after the State filed additional charges against him, the previous case "was terminated." He cites this Court to cases that concern a defendant's right to a preliminary hearing, but they have no bearing on the issue presented in this appeal, namely, whether Respondent had authority to grant Defendant's Motion for Change of Judge. Respondent's stated basis for his Order granting Defendant's Motion for Change of Judge was that "since the [a]ssociate case had a new case number, Defendant was

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granted a change of judge, another new case number was set at the Circuit level, and this Judge was assigned the case from Judge Munton, as opposed to having Defendant use a possible change on him." As best we can determine, Respondent believed that the new case number created a new case which restarted the 10-day timeline for filing a change of judge, but that interpretation of the rule has been rejected by our high court. State ex rel. Richardson v. May, 565 S.W.3d 191, 194 (Mo. banc 2019) (holding that the 10-day deadline to file an application for a change of judge was triggered on the date the trial judge was first assigned to the case, and was not extended by a superseding indictment). Judge Fisher has been assigned to this case since May 18, 2022. Our high court has stated the practical effects of the rules for a criminal defendant as they relate to a change of venue and change of judge are as follows: In sum, Rules 32.03, 32.07 and 32.08 present a criminal defendant with three options: (1) to take a change of venue; (2) to take a change of judge; or (3) to take a change of venue and a change of judge. Once any of these options is exercised, the other two are foreclosed. Thus, we hold that the application for a change of venue foreclosed Relator's subsequent application for change of judge.

State ex rel. Davis v. Lewis, 893 S.W.2d 817, 819-20 (Mo. banc 1995). Because Defendant failed to file a motion for a change of judge when he filed for a change of venue, Judge Fisher improperly sustained his subsequent Motion for Change of Judge. Relator's first point is granted, and the preliminary writ of prohibition is hereby made permanent. Respondent is directed to refrain from proceeding in the underlying case except to vacate the September 24, 2025 Order and return the case to the presiding judge for reassignment to Judge Fisher.

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JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR JACK A. L. GOODMAN, J. – CONCURS BECKY J. WEST, J. – CONCURS