Opinion
20200792-CA
12-22-2022
STATE OF UTAH, Appellee, v. JULIE D'ANN SEAT, Appellant.
Jennifer L. Foresta, Benjamin R. Aldana, and Douglas J. Thompson, Attorneys for Appellant Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Fourth District Court, Provo Department The Honorable James R. Taylor No. 201403016
Jennifer L. Foresta, Benjamin R. Aldana, and Douglas J. Thompson, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and John D. Luthy concurred.
HARRIS, JUDGE
¶1 After Julie D'Ann Seat was arrested on suspicion of driving under the influence (DUI), a magistrate determined that Seat should be denied bail. Criminal charges were soon filed, and at a bail hearing that Seat requested, she proffered additional evidence-which the State did not dispute-in support of her request for bail. After the hearing, the district court denied Seat's request, and Seat immediately appealed that ruling. Weeks later, when Seat pled no contest to the DUI charge, the court ordered her released from custody and sentenced her to a suspended prison sentence and probation. But Seat eventually ended up in prison because she violated the terms of her probation by committing yet another DUI offense; at that point, the court terminated her probation as unsuccessful and closed the case.
¶2 Seat now presses her appeal of the district court's decision to deny her pre-plea request for bail. She concedes that her challenge has been mooted by subsequent events, but she asks us to review her challenge anyway under an exception to the mootness doctrine. We decline this invitation because, in our view, this is not a case that merits application of the exception. We therefore dismiss Seat's appeal as moot.
BACKGROUND
¶3 Around 3:00 a.m. on October 17, 2020, a police officer stopped the car Seat was driving after observing erratic driving behavior. Seat did not perform well on certain field sobriety tests, and her urine tested positive for, among other things, methamphetamine. Police also found drug paraphernalia in her vehicle. Officers arrested Seat on suspicion of DUI and took her into custody. They discovered that Seat had committed two other DUI offenses within the past ten years, and that she was currently on probation related to the most recent offense. Later that morning, officers submitted to the court an affidavit of probable cause, asserting that they had grounds to charge Seat with felony DUI, possession of drug paraphernalia, and other offenses.
¶4 Just after 8:00 a.m. that morning, a district judge-acting as a magistrate-reviewed the probable cause statement and, based solely on his review of that document, determined that, because the "current offense is a felony committed while on probation or parole," and because there existed "substantial evidence to support the current felony charge," Seat should be "held without bail." Four days later, on October 21, the State filed two criminal charges against Seat: (1) third-degree-felony DUI and (2) possession of drug paraphernalia, a class B misdemeanor.
¶5 That same day, at her initial appearance, the district court found Seat to be indigent and appointed a public defender to represent her. Near the end of that brief hearing, Seat told the court that she was "concerned about the bail." The court construed this pro se comment as a request for a bail hearing, and responded by stating that it would "put it on" its calendar "tomorrow and we can talk about bail tomorrow." The court then asked the prosecutor who was staffing the first appearance hearings to "take notice" that Seat had requested a bail hearing; the prosecutor agreed to do so, and confirmed the time and location of the scheduled bail hearing. Later that evening, Seat's newly appointed defense attorney (Counsel) spoke with Seat about her bail request and the upcoming bail hearing.
¶6 The next day, when the case was called, the court-as judges often do when a case is called in the midst of a busy criminal law-and-motion calendar-asked, "[W]hat are we doing today?", and Counsel responded, "[W]e are here to address Ms. Seat's bail." The court noted that it had reviewed the magistrate's determination that Seat should be held without bail, including the magistrate's stated reasons for so ruling. Counsel then urged the court to grant Seat's request for bail, arguing that the magistrate's order should be revisited because, under the then-current bail statute, it was inappropriate "to hold somebody without bail without having an actual bail hearing where Ms. Seat is given the right to counsel."
¶7 In response, the court noted some discomfort with the idea of acting as "an appellate court" for the magistrate's decision, and indicated that it was not inclined to alter that decision without being informed of "some evidence that [the magistrate] didn't have or some argument that was not presented to him." The court stated, however, that if Seat had any new evidence to offer, it would "reconsider" the magistrate's bail decision "on that basis."
¶8 Counsel then proffered four pieces of evidence that were apparently not included in the information submitted to the magistrate:
(1) The vehicle Seat "was allegedly driving ha[d] been seized" and it was "not going to be recovered so there will be no [car] for her to drive when she is released from jail."
(2) Seat was currently living with her mother.
(3) Seat "has a 15-year-old son who she [was] trying to get back into school, [to] make sure he's taken care of."
(4) Seat had been employed prior to her arrest and hoped to return to that job upon release, although Counsel did not "know if that job is something that she can get back or not right now."
¶9 The court then asked about Seat's most recent DUI offense, seeking to confirm that the probable cause statement's representations about that offense were true. Counsel noted in response that it had occurred roughly four months earlier, and he acknowledged that Seat had been "on probation with Crossroads"-a private company that apparently provides probation services only in misdemeanor cases-in connection with that earlier offense at the time she was arrested on the current charge. Counsel did not make any assertion that any of the facts set forth in the probable cause statement were untrue. Counsel then summarized Seat's position by stating that, if the court were willing "to release her or set a reasonable bail," Seat would promptly "report to her . . . probation officer" on the other case to "get right with him and try to get her life in order," and that she would "comply with whatever pretrial conditions [the court might] impose."
¶10 The State responded by asking the court to continue to order Seat held without bail. The State emphasized that Seat was currently on probation for a very recent DUI, and noted that she had had "several issues in her past including interlock device violations" as well as a previous conviction for "possession of a controlled substance in the jail." The State asserted that Seat would be "a risk" if she were allowed "out of jail," offering its view that Seat "will be one that will violate any court order and will drive" even if ordered not to. At the conclusion of the State's response, the court asked Counsel if he "want[ed] to be heard further," and Counsel responded in the negative.
¶11 After considering the arguments and proffered evidence from both sides, the court denied Seat's request for bail, noting its "concern[] about the relatively recent DUI and the nature of the allegations and the threat to the public in this case." Counsel then stated that he wanted "to make sure that" the court was "denying [his] request for a hearing" in which "evidence [is] actually . . . presented." The court responded by explaining that it had "considered the evidence [Counsel] gave" and that it would not modify the magistrate's "order that [Seat] be held without bail." Later that same day, Seat filed a notice of appeal challenging the court's bail decision.
¶12 A few weeks later, in November 2020, Seat and the State entered into a plea agreement, under which Seat agreed to plead no contest to the felony DUI charge, and the State agreed to dismiss the misdemeanor paraphernalia charge and make certain sentencing recommendations to the court, including a stipulation to release Seat from jail upon entry of her plea and to send her home on an ankle monitor. Seat then appeared before the court and entered that plea, whereupon the court ordered that Seat be released from jail and placed on an ankle monitor.
¶13 In January 2021, the district court sentenced Seat in keeping with the agreed-upon recommendations: a suspended prison sentence, eighty-two days in jail with credit for time served (including credit for the time spent on the ankle monitor), and a thirty-six-month probationary period with certain probation conditions. But in April 2021, Seat violated those probation conditions by committing yet another DUI offense. In June 2021, after Seat pled guilty to the latest charge, the district court terminated her probation in this case as unsuccessful, sent her to prison, and closed the case.
ISSUE AND STANDARD OF REVIEW
¶14 Despite the fact that she eventually pled no contest, was released from custody, and her case is now closed, Seat presses the appeal she filed in October 2020 regarding the district court's denial of her pre-plea request for bail. In particular, she asserts that the court erred by denying her "request for an adversarial bail hearing at which the state should have been required to present substantial evidence to support the charges against her."
¶15 The threshold issue we must confront is mootness. Seat acknowledges that subsequent events have rendered her appeal moot, but contends that we should nonetheless reach the merits of her claim under an exception to the mootness doctrine. "We review the issue of mootness de novo. . . ." Cox v. Cox, 2012 UT App 225, ¶ 12, 285 P.3d 791.
¶16 Because, as set forth below, we determine that Seat's case does not merit application of the exception to the mootness doctrine, we need not reach the merits of Seat's appeal.
At oral argument before this court, the State made the suggestion-for the first time-that we might lack jurisdiction over this appeal for a second reason (in addition to mootness): because Seat did not specifically reserve the right to appeal the bail issue at the time she entered her no-contest plea. About a week after oral argument, the State filed a motion seeking dismissal of this appeal on this alternative ground. Seat opposes this motion, pointing out that she has an independent statutory right to appeal the bail order and that her appeal was filed well before she entered her plea, and arguing that, under these circumstances, she did not need to otherwise specifically reserve the right to appeal at the time of her plea. We need not reach the merits of the State's additional jurisdictional argument, however, because we conclude-for the reasons discussed herein-that we lack jurisdiction to consider the merits of Seat's appeal in any event due to mootness.
ANALYSIS
¶17 Individuals who are denied bail have a statutory right to immediately appeal the order denying bail, without the necessity of waiting for the entire case to reach a conclusion. See Utah Code § 77-20-1(13) (2020); see also Utah Code Ann. § 77-18a-1(1)(d) (LexisNexis Supp. 2022). Seat exercised this statutory right by filing an immediate appeal from the district court's October 2020 order denying her request for bail.
¶18 But the problem Seat now faces is that her appeal has been rendered moot by subsequent events. Indeed, she acknowledges as much. After all, the court released Seat from jail in November 2020 upon entry of her plea. Moreover, the entire issue of pretrial bail has been rendered moot by the fact that Seat's case is over: she has pled no contest, she has been sentenced, and the case is closed. No matter the outcome of this appeal, Seat cannot now be afforded pretrial bail, and therefore the relief she seeks is no longer available. Where, as here, an appellate "decision cannot affect the rights of the parties" involved in the appeal, "the matter is moot." See Widdison v. State, 2021 UT 12, ¶ 12, 489 P.3d 158. Under such circumstances, "we will not hear the matter" unless "an exception to our mootness doctrine" applies. See id. Seat asks us to apply such an exception, and thus the only question presented-given the parties' agreement on the underlying mootness question-is whether the exception applies.
¶19 The exception Seat invokes is sometimes referred to as the "public interest" exception, although our supreme court-noting that this label is "more confusing than helpful"-is now choosing to refer to it simply as "an exception to the mootness doctrine," see Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 33, 289 P.3d 582 (quotation simplified) (emphasis added); see also Widdison, 2021 UT 12, ¶ 14, or, perhaps more accurately, as "the exception to our mootness doctrine," see State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (emphasis added). Later in this opinion, in Part II, we address directly the issue of whether this exception fits the facts of this case and conclude that it does not. But before doing so, we consider it necessary to discuss some general legal principles that inform our analysis.
I
¶20 The issues Seat raises invoke both constitutional and statutory provisions regarding bail. We begin with an overview of those provisions, including a discussion of recent amendments to the bail statutes, paying special attention to some of the relevant differences between the statute in effect at the time Seat was arrested and the statutes in effect now. We then conclude Part I by offering a general discussion of the mootness doctrine.
A
¶21 In a section last amended in 1988, our state constitution provides that, subject to three exceptions, "[a]ll persons charged with a crime shall be bailable." Utah Const. art. I, § 8(1). The three exceptions are for the following groups of people:
• "[P]ersons charged with a capital offense when there is substantial evidence to support the charge";
• "[P]ersons charged with a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge, when there is substantial evidence to support the new felony charge"; and
• "[P]ersons charged with any other crime, designated by statute as one for which bail may
Id. art. I, § 8(1)(a), (b), (c).be denied, if there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community or is likely to flee the jurisdiction of the court if released on bail."
¶22 Interpreting an earlier version of this provision, our supreme court determined that defendants are entitled, upon request, to a "bail hearing" at which they have the right to cross-examine the State's witnesses and present witnesses and evidence of their own. See Chynoweth v. Larson, 572 P.2d 1081, 1082 (Utah 1977). The court later reaffirmed this holding in a case arising under the current version of the relevant constitutional provision. See State v. Kastanis, 848 P.2d 673, 676 (Utah 1993) (stating that a defendant has the right to "a bail hearing, at which he may bring his own evidence and witnesses and at which he may cross-examine the State's witnesses," and that the defendant "must be given adequate notice to prepare for the hearing").
¶23 While this constitutional provision (as interpreted in Chynoweth and Kastanis) does recognize some specific rights, it leaves certain gaps to be filled by our legislature. For instance, it authorizes our legislature to determine which additional crimes should be "designated by statute as one[s] for which bail may be denied." See Utah Const. art. I, § 8(1)(c). And because it contains no express mention of a bail hearing, let alone any particulars of what the bail process should look like, our constitution also affords our legislature a certain amount of discretion to set the parameters of that procedure. Over the years, our legislature has exercised its discretion in this regard, and has enacted statutes governing the bail process.
¶24 At the time of Seat's arrest in October 2020, the relevant bail statutes were codified in Title 77, Chapter 20 of the Utah Code, with the key statute (the 2020 Statute) found in section 77-20-1. See Utah Code § 77-20-1 (2020). Regarding bail eligibility, the 2020 Statute tracked the constitutional provision to some degree, providing that anyone "charged with or arrested for a criminal offense" is entitled to bail, except for certain categories of persons. See id. § 77-20-1(2). Some of the categories listed in the statute were the same as those listed in the constitution, including-as relevant here-persons who committed a felony "while on probation or parole." See id. § 77-20-1(2)(b). But the statute includes categories of persons not listed in the constitution, see id. § 77-20-1(2)(c), (d), (e), in keeping with the authority granted to the legislature to "designate[] by statute" certain additional crimes "for which bail may be denied," see Utah Const. art. I, § 8(1)(c).
¶25 Regarding the process of determining whether a defendant was entitled to bail, the 2020 Statute required any "court exercising jurisdiction over an individual charged with or arrested for a criminal offense" to issue a "pretrial status order" that either (a) designated "the conditions to be imposed upon the individual's release" or (b) ordered "that the individual be detained" pending the completion of the case. Utah Code § 77-20-1(3)(a) (2020). Rule 9 of the Utah Rules of Criminal Procedure (both in 2020 and now) requires that any person arrested on suspicion of criminal activity "must be presented without unnecessary delay before a magistrate for the determination of probable cause and" for an assessment of whether the person qualifies for pretrial release under applicable bail statutes. See Utah R. Crim. P. 9(a)(1). And the 2020 Statute allowed courts, in making a pretrial bail assessment, to "rely" on a variety of factors, including any "pretrial services assessment," the "nature and circumstances of the offense or offenses charged," and the individual's "character" and criminal history. See Utah Code § 77-20-1(5) (2020).
¶26 But the 2020 Statute was less than clear about when a defendant was entitled to a bail hearing at which evidence could be presented. In particular, the 2020 Statute did not make a distinction between a pretrial status order issued by a magistrate after a rule 9 probable cause determination and a pretrial status order entered by a court later in the criminal case. On the one hand, the statute required the court to issue such orders "without unnecessary delay," see id. § 77-20-1(3)(c)(i), but, on the other hand, it allowed the court to delay issuing such orders if the prosecutor filed a motion for detention, an action the prosecutor could take only after criminal charges had been filed, see id. § 77-20-1(3)(c)(ii), (6). Moreover, the 2020 Statute provided no mechanism by which defendants could seek a bail hearing before a pretrial status order was entered; instead, the only statutory mechanism that, on its face, allowed defendants (as opposed to prosecutors) to request a bail hearing was one that allowed either side to seek to modify pretrial status orders after they had already been entered. See id. § 77-20-1(11).
¶27 The bail statutes were substantively amended during the 2021 general legislative session, and those changes became effective in May 2021. See Act of Mar. 24, 2021, ch. 431, § 5, 2021 Utah Laws 3658, 3660-63; Act of Mar. 16, 2021, ch. 94, § 2, 2021 Utah Laws 810, 810-13; Act of Mar. 16, 2021, ch. 88, § 1, 2021 Utah Laws 787, 787-90. But those amendments were short-lived, and are not discussed here, because our legislature repealed section 77-20-1 in its entirety during a November 2021 special session and replaced it with a series of new statutes, which are still in place today. See Act of Nov. 16, 2021, ch. 4, § 38.
¶28 The current bail statutes are still codified at Title 77, Chapter 20 of the Utah Code, but they now carry different statutory section numbers. See Utah Code Ann. §§ 77-20-101 to -208 (LexisNexis Supp. 2022). The recodification reflected a variety of substantive changes, and included new provisions aimed at clarifying some of the uncertainties contained in the 2020 Statute. Perhaps most importantly for present purposes, the current statutes draw a distinction between a "pretrial status order" and a "temporary pretrial status order." See id. § 77-20-102(14), (18). Under the current statutes, a magistrate-after making a rule 9 probable cause determination-"shall issue a temporary pretrial status order" that includes a determination about pretrial detention and bail. Id. § 77-20-205(1)(a). In making that determination, the magistrate may rely upon, among other things, "information contained in . . . the indictment or information" or on the "probable cause statement" submitted by law enforcement. See id. § 77-20-205(7)(a). There is no provision entitling any party to a hearing in advance of the magistrate's issuance of a temporary pretrial status order. And that order is intended to be "temporary," governing the defendant's status only "until a pretrial status order is issued." See id. § 77-20-102(18)(a), (b), (c).
¶29 The more permanent pretrial status order is, pursuant to the current statute, ordinarily to be issued "at an individual's first appearance before the court," id. § 77-20-205(2)(a), but the court "shall delay" entry of that order if: (i) the prosecutor "makes a motion for pretrial detention"; (ii) "any party asks for delay"; or (iii) there exists other "good cause to delay the issuance" of the order," id. § 77-20-205(2)(c). In issuing this more permanent order, the court "may not give any deference to a magistrate's decision in a temporary pretrial status order." Id. § 77-20-205(2)(b). If the State asks for pretrial detention, the statute contemplates that the court will hold a "pretrial detention hearing" to consider the State's request. Id. § 77-20-205(2)(c)(i). Although there is no explicit provision stating that a pretrial bail hearing be held upon the defendant's request, the statute does note that any "party" may request that issuance of the pretrial status order be delayed and that it be entered sometime after defendant's first appearance, id. § 77-20-205(2)(c)(ii), and (as noted) defendants have a constitutional right to a bail hearing upon request, see Kastanis, 848 P.2d at 676. Even the State therefore interprets the current statute as "clearly allow[ing] both parties to seek a hearing before the court enters its pretrial status order." And the statute certainly makes clear that, if a "pretrial detention hearing" is held, "both parties" shall be given "the opportunity to make arguments and to present relevant evidence or information." See Utah Code Ann. § 77-20-206(4)(a) (LexisNexis Supp. 2022).
¶30 In sum, Utah's bail statutes have twice been materially modified since October 2020, when Seat was arrested in this case.
B
¶31 Sometimes, cases that present live controversies when they were first filed become mooted by the course of subsequent events. "An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect." Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 14, 289 P.3d 582 (quotation simplified).
¶32 Once a case has been rendered moot, a court should "go no further, and its immediate duty is to dismiss the action." Id. ¶ 19 (quotation simplified). Our reticence to issue decisions in moot cases is not borne out of "a purely prudential principle of judicial discretion." Id. ¶ 17. Rather, the doctrine of mootness "is an element of the principles defining the scope of the 'judicial power' vested in the courts by the Utah Constitution," and "is not a simple matter of judicial convenience or ascetic act of discretion." Id. ¶ 18; see also id. ¶ 27 (stating that "[m]ootness is a constitutional principle"). Courts "have no power to decide abstract questions or to render declaratory judgments, in the absence of an actual controversy directly involving rights." Id. ¶ 19 (quotation simplified); see also Baird v. State, 574 P.2d 713, 716 (Utah 1978) (stating that "courts are not a forum for hearing academic contentions or rendering advisory opinions"). Thus, when a case is moot, courts are constitutionally powerless to hear and adjudicate the case, because courts' power is "limited" to the "judicial power" conferred by the constitution, and courts "may not act extra-judicially (regardless of how interesting or important the matter presented for our consideration)." Utah Transit Auth., 2012 UT 75, ¶ 20 (quotation simplified).
¶33 There is only one recognized exception to the mootness doctrine; where applicable, that exception allows us to hear cases that are otherwise moot. This exception, as noted, has historically been referred to as "the public interest exception," but that label is now disfavored. See id. ¶ 33. The exception has three elements, each of which must be present for the exception to apply: (1) the case must present "an issue that affects the public interest"; (2) the issue presented must be "likely to recur" in the future; and (3) the issue must be one that, "because of the brief time that any one litigant is affected," is likely to evade review in the future. Id. ¶ 32; see also Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158. The burden of demonstrating that these elements are met falls upon the party invoking the exception. See Widdison, 2021 UT 12, ¶ 57 (noting that the individual invoking the exception bears the "burden of persuasion"); see also State v. Black, 2015 UT 54, ¶ 12, 355 P.3d 981 (suggesting that the burden is on the party invoking the exception).
It is somewhat unclear whether a court must hear a case in which all three elements of the exception are met, or whether courts retain discretion, due to the case's status as moot, to decline to hear the case even if all three elements are met. Compare Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158 (stating that "we will decide a moot issue when a litigant can demonstrate" that the three elements are met (emphasis added)), with Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 32, 289 P.3d 582 (stating that "a matter that appears moot may nonetheless be decided by the court if" the three elements are met (emphasis added)). This distinction is immaterial here, however, because (as discussed herein) Seat cannot make the necessary showing that all three elements are met.
II
¶34 With this legal background in mind, we turn to the question presented in this appeal, namely, whether Seat has satisfied her burden of demonstrating that each of the three elements of the exception to the mootness doctrine are met. For the reasons discussed, we conclude that Seat has not carried her burden with regard to the second and third elements.
¶35 As we perceive Seat's grievance, it contains both statutory and constitutional components. Any statutory question Seat raises here arises under the 2020 Statute, the version of the bail statute that was in effect at the time of Seat's arrest. But because the 2020 Statute is no longer in effect, and because the statutory amendments that have been made since Seat's arrest clarify many of the issues Seat complains about, we conclude that Seat's statutory questions are unlikely to recur in the future and therefore do not meet the exception's second element.
¶36 In particular, the 2021 statutory amendments clarify that district judges making decisions about what kind of pretrial status order to enter are not permitted to give any deference to a magistrate's previous temporary pretrial status order. See Utah Code Ann. § 77-20-205(2)(b) (LexisNexis Supp. 2022). Thus, Seat's complaint that the court in her case was too deferential to the magistrate has been cleared up by statutory amendment.
¶37 Moreover, the 2021 statutory amendments provide significant additional guidance regarding when bail hearings are expected to take place. Most notably, the current statutes draw a clear distinction between a "pretrial status order" and a "temporary pretrial status order," and contain no provision entitling any party to a hearing prior to entry of a temporary pretrial status order. See id. §§ 77-20-102(14), (18), -205(1)(a). The current statutes also clarify that a magistrate may rely on the probable cause statement submitted by law enforcement in deciding what kind of temporary pretrial status order to enter. See id. § 77-20-205(7)(a). Thus, to the extent Seat is asserting that she had a right to a hearing prior to the magistrate's entry of her pretrial detention order, that question has been clarified-in the negative-by subsequent statutory amendment.
¶38 For these reasons, we conclude that-to the extent Seat raises a statutory question-her appeal is a poor fit for application of the exception to our mootness doctrine, because the governing statute has been significantly amended since her arrest, rendering her precise statutory questions unlikely to arise again in the future, and rendering unhelpful any answer we might give to her now-outdated statutory questions.
Indeed, Seat acknowledges that the current statutory scheme "specifically incorporates some of the longstanding protections of the Utah constitution and the associated caselaw, making it clear that bail may only be denied under certain circumstances."
¶39 But Seat appears to press a constitutional claim too: she asserts that-irrespective of what the statutes say-she is entitled under our state constitution to an "adversarial bail hearing," held at an early stage of the criminal case, at which the State must present witnesses and other evidence and at which she may cross-examine the State's witnesses and present evidence of her own. See State v. Kastanis, 848 P.2d 673, 676 (Utah 1993). In this case, Seat did receive a bail hearing, with counsel, at which both sides proffered evidence and made argument. But the court did not require the State to present witnesses and live evidence at that hearing; Seat asserts that our state constitution entitles her to a full-blown evidentiary hearing, even though she never asserted that there were-and nothing in the record indicates that there were-any material factual disputes that required resolution by evidentiary hearing. Stated another way, she asserts that all criminal defendants are entitled to a full-blown evidentiary bail hearing-rather than a proffer hearing-in every case upon request, even if no facts are in dispute. Given the breadth of this question, we find merit in the State's position that such a question is not likely to evade review in future cases, and therefore Seat's position runs headlong into the third element.
In addition to this broad question about entitlement to a formal bail hearing, Seat attempted to raise, for the first time at oral argument before this court, a second and much different question: whether she fits, as a legal matter, into the "probation or parole" category of persons eligible to be denied bail. At oral argument, Seat made the point that she was on misdemeanor (rather than felony) probation at the time she committed the DUI offense in this case (an assertion obliquely supported by the reference to "Crossroads" in the record), and she argued that she can be denied bail under section (1)(b) of Article I, Section 8 of our constitution only if she was on felony probation at the time of the current offense. Her understanding of the law appears to be correct, see Scott v. Ryan, 548 P.2d 235, 236 (Utah 1976), but her argument nevertheless suffers from two infirmities. First, it is unclear whether the district court even relied on section 8(1)(b) of the constitution when it denied her bail; from the court's ruling, it appears more likely that it was relying on section 8(1)(c) of the constitution and section 77-20-1(2)(c) of the Utah Code- provisions that allow the denial of bail, regardless of probationary status, when the defendant is (among other things) a "substantial danger to any other individual or to the community." But second, and more to the point here, Seat did not ever frame the question this way before the district court, and she also did not frame the question this way in her appellate briefing. The sole question she raised in her briefs-as opposed to at oral argument-is the one we discuss in text: her asserted entitlement to a formal bail hearing regardless of the existence of a factual dispute. Seat is not permitted to raise a new question for the first time at oral argument, see Porenta v. Porenta, 2017 UT 78, ¶ 33, 416 P.3d 487 ("We do not address issues raised for the first time during oral argument."), and we therefore proceed as though the only question Seat raises is the one set forth in her briefs.
¶40 As an initial matter, we take Seat's point that, for many defendants, bail issues will become moot long before an appellate court has the chance to weigh in on them. Seat notes (correctly) that, for many defendants, bail issues are likely to evade appellate review because of "the short timeline of most [criminal] cases" and because many cases are resolved by plea. Indeed, Seat asserts that it is often easy for the State to "extract a plea from an incarcerated person faced with a choice between an often immediate release or an extended appellate period," and even alleges that, in her case, the State "wielded" its "power to deny" bail "for the purpose of extracting a plea from" her. For purposes of this appeal, we take these allegations at face value; we do not doubt that, in many cases, jailed defendants may feel pressure, because of their in-custody status, to accept plea bargains that they may not have accepted if they were out of custody.
¶41 But we disagree with Seat's broader assertion that bail cases appear so seldom in Utah's appellate courts as to render bail issues, as a general category, likely to evade review. As noted, defendants have a statutory right to immediately appeal any order denying them the right to bail, without waiting for the entire case to come to a conclusion. See Utah Code Ann. § 77-18a-1(1)(d) (LexisNexis Supp. 2022). And we have already discussed Chynoweth and Kastanis, our supreme court's seminal cases on the constitutional right to a bail hearing. See Kastanis, 848 P.2d at 676; Chynoweth v. Larson, 572 P.2d 1081, 1082 (Utah 1977). Seat points out that, following Kastanis, there was a lengthy period during which Utah appellate courts issued no opinions regarding bail, and concludes therefrom that, in general, "appealable issues regarding bail and bail hearings are exactly the sort of matters likely to evade appellate review."
¶42 But Seat's argument is fatally undermined by the existence of a veritable flurry of relatively recent appellate bail cases. Both this court and our supreme court have recently issued published opinions directly addressing, on the merits, claims by defendants that they were improperly denied pretrial bail. See Randolph v. State, 2022 UT 34, ¶¶ 15-88, 515 P.3d 444; State v. Silveira, 2022 UT App 78, ¶¶ 8-21, 514 P.3d 166, vacated and remanded, Order, Case No. 20220652-SC (Oct. 21, 2022). And we are aware of at least one unpublished opinion order in which we addressed similar issues. See Order, State v. Pexton, Case No. 20200944-CA (July 2, 2021). In each of these cases, a criminal defendant availed himself of the statutory right to immediately appeal a pretrial detention order, and in each case the appellate court was able to render an opinion in the case before the matter became moot. And in at least one of these cases (Pexton), the appeal was successful.
¶43 Moreover, our appellate rules include a mechanism- referred to as our "simplified appeal process"-that is designed to allow certain appeals to reach resolution faster, see Utah R. App. P. 10(b), and that process has been used in at least one bail case of which we are aware. In Pexton, for instance, the appellant filed a motion asking the court to expedite the briefing and decision schedule; the court effectively granted that motion by selecting the case for the "simplified appeal process" set forth in rule 10(b).
¶44 Thus, we reject Seat's assertion that bail cases, as a general category, are unlikely to be reviewed by Utah's appellate courts. Recent events demonstrate otherwise, and there exists an expedited appellate procedure that can be-and has been-used in bail cases to hasten review.
We encourage defendants who elect to appeal detention orders to make known their preference, if they have one, for an expedited process in general or the rule 10(b) process in particular. We understand the need for urgency in bail appeals, and we will accommodate such requests where appropriate.
¶45 We recognize that, in each of the three recent cases in which Utah appellate courts reached the merits of a bail appeal, the defendants were charged with very serious crimes (murder, rape, or aggravated sexual abuse), and were therefore unlikely to be in a position to negotiate a release from custody upon entry of a plea. And we recognize that bail issues are more likely to reach us on appeal when they arise in cases involving more serious criminal charges. For these reasons, if a specific bail-related issue were to arise that was relevant or applicable only in less serious criminal cases, the defendant pressing that issue may have a better argument than Seat does here that the question presented is likely to evade appellate review.
Or may not. The State points out, citing State v. Steed, 2015 UT 76, ¶ 11, 357 P.3d 547, that "[i]n determining whether an issue is inherently short in duration" and therefore likely to evade review, Utah appellate courts "have traditionally focused on whether the issue itself was of a rapidly resolving nature (and therefore likely to evade review), and not on whether the issue is likely to evade review by virtue of collateral choices future parties are likely to make." From this proposition, the State argues that a criminal defendant's later decision to plead guilty after being denied bail is the sort of "collateral choice" that should not bear on the question of whether an issue is transitory enough to evade appellate review. While this argument is not without force, we need not reach it in this situation, because-regardless of whether the State's argument is correct-we nevertheless determine for other reasons that the specific question Seat raises here is not likely to evade review in the future.
¶46 But in this case, we perceive Seat's specific constitutional bail-related question to be broad enough to potentially apply to any criminal case, and not just to cases involving less serious crimes in which defendants may be able to negotiate an early release through a plea. Indeed, Seat asserts that defendants-in every case, including cases in which no facts are in dispute-are entitled to a formal evidentiary bail hearing at which the State remains obligated to call live witnesses and present evidence and at which the defendant may cross-examine the State's witnesses and present evidence of their own. The sheer breadth of this question cuts against Seat's assertion that it is likely to evade appellate review. After all, this question is potentially just as relevant to first-degree-felony cases (e.g., murder or rape cases) as it is to third-degree-felony or misdemeanor cases. And bail questions arising in first-degree-felony cases have recently proven themselves to be good candidates for at least periodic, if not frequent, appellate review. See Randolph, 2022 UT 34; Silveira, 2022 UT App 78.
¶47 There may well come a day when a Utah appellate court will need to reach the merits of Seat's question, and decide whether our state constitution requires district judges, in the context of crowded criminal calendars, to take the time to hold formal evidentiary bail hearings even in cases where no facts are in dispute. If this question is truly one that is of concern to the criminal defense bar, we are confident that-given its breadth and applicability to essentially any criminal case-it can and eventually will be presented to us in a case in which the issue is not moot. Accordingly, we do not view Seat's constitutional question as one that is likely to evade review in the future.
CONCLUSION
¶48 Seat's appeal is moot, and the one recognized exception to the mootness doctrine is a poor fit for this case. To the extent Seat raises statutory questions, those questions are unlikely to recur in view of the significant recent changes to the bail statutes. And the constitutional question Seat raises is not likely to evade review in future cases. We therefore decline to apply the exception here, leaving us no choice but to dismiss Seat's appeal as moot.
¶49 Appeal dismissed.