                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2018 UT 41


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                          MIGUEL HERNANDEZ,
                              Appellant.

                              No. 20160671
                          Filed August 14, 2018

                 On Appeal of Interlocutory Order

                   Fourth District, Utah County
               The Honorable Judge Claudia Laycock
                          No. 161400040

                                 Attorneys:
    Sean D. Reyes, Att’y Gen., Tera J. Peterson, Asst. Solic. Gen.,
         Salt Lake City, Christine Scott, Provo, for appellee
            Joshua S. Baron, Salt Lake City, for appellant

     JUSTICE PEARCE authored the opinion of the Court in which
        CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS, and JUSTICE PETERSEN joined.

   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
    ¶ 1 The State has charged Miguel Hernandez with aggravated
sexual abuse of a minor. Hernandez subpoenaed his alleged victim
to testify at his preliminary hearing. The district court quashed the
subpoena and bound Hernandez over for trial. Hernandez appeals
the decision to quash the subpoena, but not the district court’s
determination that probable cause existed for him to face trial.
Hernandez’s gambit creates a procedural quandary. The decision
Hernandez appeals has been mooted by the subsequent bindover.
And we lack jurisdiction to consider the decision Hernandez has not
                        STATE v. HERNANDEZ
                        Opinion of the Court

appealed. For these reasons, we must dismiss this appeal and await
another opportunity to answer the question we granted
interlocutory review to address.
                          BACKGROUND
    ¶ 2 The facts necessary to understand our disposition of this
matter are simple and few. The State charged Hernandez with ten
counts of aggravated sexual abuse of a minor. Hernandez sought to
subpoena the alleged victim (Victim) to testify at the preliminary
hearing. 1 The State moved to quash that subpoena, arguing that
calling the witness would violate her constitutional rights, and
would “eviscerate” Utah Rule of Evidence 1102 and Utah Rule of
Criminal Procedure 15.5. The court quashed the subpoena.
Hernandez requested a stay so he could appeal that decision. The
district court denied the stay. The court held the preliminary hearing
that day and bound Hernandez over for trial.
    ¶ 3 Hernandez sought interlocutory appeal of the order
quashing the subpoena, but not the bindover. He “petition[ed] this
[c]ourt for permission to appeal from an order entered . . . granting
the State’s Motion to Quash the Subpoena served by the Defendant
on the alleged child victim.” Hernandez attached only the order
quashing the subpoena, and asked “this Court [to] order the trial
court to enforce his subpoena of the alleged victim and to reopen the
preliminary hearing to permit [Hernandez] to call [Victim] as a
witness.”
    ¶ 4 In its briefing opposing interlocutory review, the State
argued that the district court’s decision to bind Hernandez over for
trial had mooted its prior decision to quash the subpoena. We
granted the petition for interlocutory appeal, but asked the parties
to address the State’s concerns. We instructed:
      Recently, this Court granted the petition for
      interlocutory appeal in this case. In its response, the
      State asserted the petition is moot because Petitioner
      was bound over and did not file a motion to quash. In
      their briefing on the merits the parties are requested to
_____________________________________________________________
   1 We understand that the charges against Hernandez have not
been adjudicated and that therefore the allegations against him
remain allegations. By referring to Hernandez’s alleged victim as
Victim, we do not suggest that we have concluded Hernandez
committed the crimes with which he has been charged.


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                        Opinion of the Court
       address that contention and the Petitioner’s assertion
       that a district court may reopen a preliminary hearing
       after a defendant has been bound over.
   ¶ 5 Hernandez asserted that the case was not moot because if
the court reopened the preliminary hearing, the “requested relief
will affect the defendant’s rights.” The State reworked Hernandez’s
argument for him, arguing that although “not expressly cast in these
terms, [Hernandez] essentially asserts that he had a right to discover
the child victim’s testimony by forcing her to testify at the
preliminary hearing . . . .” And if discovery is the defendant’s goal,
the State argues, this appeal is not moot. 2
    ¶ 6 But at oral argument, defendant’s counsel waived off the
State’s attempt to reframe and argued that Hernandez did not want
to discover Victim’s testimony. Instead, Hernandez doubled down
on the argument that he wanted the testimony on the preliminary
hearing record because it was germane to the probable cause
determination. Indeed, when asked if Hernandez wanted to call the
alleged victim to discover her testimony, counsel responded: “No.
It’s not for discovery.” 3
             ISSUES AND STANDARD OF REVIEW
    ¶ 7 We must determine whether the bindover decision mooted
the decision to quash the subpoena. We must also address whether
we have jurisdiction to reach that bindover decision. “Whether
jurisdiction to reach the merits of an appeal ‘exists is a question of
law which we review for correctness, giving no deference to the
court below.’” A.S. v. R.S., 2017 UT 77, ¶ 8, 416 P.3d 465 (citation
omitted).




_____________________________________________________________
   2 To be clear, the State does not believe that Hernandez is entitled
to that discovery. The State merely notes that the question of
whether Hernandez was entitled to use the preliminary hearing for
discovery purposes would not be moot.
   3 The Utah Crime Victims Legal Clinic and the National Crime
Victim Law Institute (Amici) filed an amicus curiae brief on behalf of
the alleged victim. Among other arguments, Amici urged us to treat
defendant’s petition for review as an appeal of the bindover.


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                         STATE v. HERNANDEZ
                         Opinion of the Court

                             ANALYSIS
    ¶ 8 “An appeal is moot if . . . the relief requested [is] impossible
or [has] no legal effect.” In re Adoption of L.O., 2012 UT 23, ¶ 8, 282
P.3d 977 (citation omitted). The defendant asks us to permit him to
call Victim as a witness at his preliminary hearing. He has clarified
that his sole purpose in questioning her is to uncover testimony that
could affect the probable cause determination. But he has not
appealed the bindover. This means that Hernandez is appealing in
hopes of adducing evidence that might change a determination that
has already been made and has not been appealed. Because
Hernandez has not appealed the bindover decision, reversing the
district court’s decision—if we were to reverse—would have “no
legal effect” on the existing bindover decision. Id. And that is the
definition of mootness.
    ¶ 9 In fairness to Hernandez, an untested assumption skulks
beneath his arguments. Hernandez assumes that if we reverse the
motion to quash the subpoena, the district court could reopen the
preliminary hearing. 4 But he offers no rule, statute, or case to
support this proposition. We were not willing to join Hernandez—
and the State—in assuming the answer to the question and asked for
briefing on the topic. Specifically, we asked the parties to address
“Petitioner’s assertion that a district court may reopen a preliminary
hearing after a defendant has been bound over.” Neither Hernandez
nor the State indulged our request and, without the benefit of
briefing, we are unwilling to opine on whether the district court
could revisit an unappealed bindover decision in circumstances like
these. 5
   ¶ 10 Amici offer us another possible way to reach the merits.
Amici point to the public interest exception to mootness. We have
noted that our cases “establish that a matter that appears moot may
nonetheless be decided by the court if it (1) presents an issue that
_____________________________________________________________
   4The obverse assumption runs under the State’s mootness
argument.
   5 The State argues that because Hernandez “does not challenge
the preliminary hearing’s outcome, he has effectively conceded that
reopening the hearing to hear the victim’s testimony will not affect
that outcome.” Because we conclude the question is moot, we need
not resolve whether Hernandez’s decision to not appeal the bindover
can be construed as a concession.


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                          Opinion of the Court
affects the public interest, (2) is likely to recur, and (3) because of the
brief time that any one litigant is affected, evades review.” Utah
Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT
75, ¶ 32, 289 P.3d 582. But Amici’s entire argument that these cases
will evade review relies on one premise—that if we decide this case
is moot, a bindover would “block[]” review of subpoenas.
Hernandez appears to labor under the same misconception, arguing
that “[i]f the Court holds that an order quashing a preliminary
hearing subpoena cannot be reviewed once bindover takes place,
the Court will render Rule 7 [of the Utah Rules of Criminal
Procedure] meaningless.” But the only impediment to review is
Hernandez’s decision to not appeal the bindover. If Hernandez had
sought review of the bindover and the motion to quash, we could
address the district court’s decision to quash the subpoena and the
effect of that decision on the district court’s determination that
probable cause existed that a crime had been committed and
Hernandez committed it. 6
    ¶ 11 Amici also assert that we could simply treat Hernandez’s
appeal as an appeal of the bindover. But in In re Adoption of B.B., a
majority of this court concluded that “[a]n order not identified in the
notice of appeal falls beyond our appellate jurisdiction. And the
failure to identify an order is a non-waivable (jurisdictional) defect.”
2017 UT 59, ¶ 106, 417 P.3d 1. We further stated that “[u]nder our
longstanding rules the appellant bears the burden of identifying any
and all orders being challenged on appeal.” Id. ¶ 108. We rested this
decision on the notion that “[t]he object of a notice of appeal is to
advise the opposite party that an appeal has been taken from a
specific judgment in a particular case. [The] [r]espondent is entitled
to know specifically which judgment is being appealed.” Id. ¶ 107
(quoting Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977
P.2d 474). Although Jensen and In re Adoption of B.B. concerned a
notice of appeal, the same policy applies to a petition for
interlocutory appeal.
_____________________________________________________________
   6 In support of their argument, Amici also argue that “[a]s part of
the Victims’ Rights Act, the Legislature has directed that ‘[a]n
appellate court shall review all properly presented [crime victims’]
issues, including issues that are capable of repetition but would
otherwise evade review.’” (Second and third alterations in original)
(quoting UTAH CODE § 77-38-11(2)(c)). And so we shall. But the issue
before us, as discussed above, is not “properly presented.” UTAH
CODE § 77-38-11(2)(c).


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                         STATE v. HERNANDEZ
                        Opinion of the Court

   ¶ 12 Hernandez did not identify the bindover decision in his
petition. Therefore, under the logic of In re Adoption of B.B., we lack
appellate jurisdiction to review that decision. See id. ¶ 106.
    ¶ 13 Amici argue that we could simply treat Hernandez’s appeal
of the motion to quash as an appeal of the bindover. And that no
“specific rule of appellate procedure blocks the Court from granting
[Hernandez] the relief he requests.” Amici are correct, but no
specific rule authorizes it either. And Amici cite no authority to
support the proposition that we could treat the appeal of one motion
as an appeal of another. But, prior to In re Adoption of B.B., we had,
in some circumstances, relieved a party of a mistake in its notice of
appeal. For example, we have reasoned that a party could appeal an
order not specifically designated in the notice of appeal because “the
appealing party’s intent [was] clear and the appellee suffer[ed] no
prejudice . . . .” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82,
¶ 15, 199 P.3d 957.
    ¶ 14 Before we could use Kilpatrick to bail an appellant out, we
would need to confront two issues. First, we would need to confront
whether In re Adoption of B.B.’s holding—that a defective notice of
appeal robs this court of appellate jurisdiction—leaves room for us
to treat an appeal of one order as an appeal of another in certain
circumstances (where the appellee would suffer no prejudice, for
example). See In re Adoption of B.B., 2017 UT 59, ¶ 106 (“An order not
identified in the notice of appeal falls beyond our appellate
jurisdiction. And the failure to identify an order is a non-waivable
(jurisdictional) defect.”). Second, unlike in Kilpatrick, Hernandez did
not intend to appeal the bindover decision and, in fact, doggedly
insists that he is not appealing that decision. As such, even if
Kilpatrick survives In re Adoption of B.B., this case can be
distinguished from Kilpatrick.
   ¶ 15 Hernandez did not appeal the bindover decision and, in the
absence of compelling argument that we have the ability to relieve
Hernandez of that choice’s consequences, we lack jurisdiction to
address that decision.
                            CONCLUSION
    ¶ 16 Hernandez decided to appeal the motion to quash a
subpoena to force Victim to testify at his preliminary hearing, but
not the decision to bind him over for trial. Hernandez did not, even
in response to our request, brief the question of whether the district
court could reopen his preliminary hearing. In the absence of such
briefing, we conclude that the record before us demonstrates that


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                      Opinion of the Court
the motion to quash is moot because nothing we could do with that
motion on appeal would affect the unappealed bindover decision.
We also conclude that we are without jurisdiction to reach the
bindover decision. We dismiss this interlocutory appeal and
remand.




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