State v. Seat

2022 UT App 143
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JULIE D’A NN S EAT,
Appellant.
Opinion
No. 20200792-CA
Filed December 22, 2022
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 R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME 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

State v. Seat
20200792-CA 	2 	2022 UT App 143
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.

State v. Seat
20200792-CA 	3 	2022 UT App 143
¶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:

State v. Seat
20200792-CA 	4 	2022 UT App 143
(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

State v. Seat
20200792-CA 	5 	2022 UT App 143
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

State v. Seat
20200792-CA 	6 	2022 UT App 143
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.1
1. 	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
(continued…)

State v. Seat
20200792-CA 	7 	2022 UT App 143
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
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.

State v. Seat
20200792-CA 	8 	2022 UT App 143
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

State v. Seat
20200792-CA 	9 	2022 UT App 143
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.”
Id. art. I, § 8(1)(a), (b), (c).
¶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

State v. Seat
20200792-CA 	10 	2022 UT App 143
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

State v. Seat
20200792-CA 	11 	2022 UT App 143
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

State v. Seat
20200792-CA 	12 	2022 UT App 143
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.

State v. Seat
20200792-CA 	13 	2022 UT App 143
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

State v. Seat
20200792-CA 	14 	2022 UT App 143
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.2 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).
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
2. 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.

State v. Seat
20200792-CA 	15 	2022 UT App 143
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

State v. Seat
20200792-CA 	16 	2022 UT App 143
future, and rendering unhelpful any answer we might give to her
now-outdated statutory questions.3
¶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.4 Stated another way, she asserts that all
3. 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.”
4. 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
(continued…)

State v. Seat
20200792-CA 	17 	2022 UT App 143
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.
¶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
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.

State v. Seat
20200792-CA 	18 	2022 UT App 143
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.

State v. Seat
20200792-CA 	19 	2022 UT App 143
¶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.5
¶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.6
5. 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.
6. 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
(continued…)

State v. Seat
20200792-CA 	20 	2022 UT App 143
¶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
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.

State v. Seat
20200792-CA 	21 	2022 UT App 143
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.