State v. Dowhaniuk

2025 UT App 100

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAKE DEVIN DOWHANIUK,
Appellant.

Opinion
No. 20250013-CA
Filed July 3, 2025

Fifth District Court, Beaver Department
The Honorable Gary D. Stott
The Honorable Thomas M. Higbee
No. 241500031

Wendy M. Brown, Debra M. Nelson, and
Benjamin Miller, Attorneys for Appellant
Derek E. Brown and Hwa Sung Doucette,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

HARRIS, Judge:

¶1 Jake Devin Dowhaniuk is being held without bail pending
resolution of a criminal information charging him with
aggravated assault and criminal mischief. In its original pretrial
detention order, the district court ruled that Dowhaniuk could be
released on his own recognizance so long as he was equipped
with an ankle monitor and complied with certain other
conditions. However, the State later asked the court to modify that
ruling and to order that Dowhaniuk be held without bail or other
pretrial release opportunity. The court granted that motion
electronically some 80 minutes after the State filed it.
State v. Dowhaniuk

¶2 Dowhaniuk now appeals from that order, as well as from
a subsequent order in which the court refused to modify its
modified order. He asserts (among other things) that he was not
afforded a proper opportunity to be heard on the State’s motion
to modify. We agree with Dowhaniuk that the court’s
modification order was procedurally infirm and that the errors
prejudiced Dowhaniuk. We therefore vacate that order, reinstate
the original detention order, and remand this case to the district
court for further proceedings.

BACKGROUND

¶3 After an incident with his girlfriend (Girlfriend),
Dowhaniuk was charged with domestic-violence aggravated
assault, a third-degree felony, and criminal mischief, a class A
misdemeanor. In the charging document, the State alleged that
Dowhaniuk hit Girlfriend in the face and applied “a large amount
of pressure” to her throat. The State also alleged that Dowhaniuk
had damaged Girlfriend’s car. On the same day the information
was filed, the district court entered a temporary pretrial status
order that required Dowhaniuk “to be held without bail.”

¶4 At a hearing held early in the case—just eleven days after
the information was filed—the district court heard arguments
about whether Dowhaniuk should be detained pending
resolution of the charges. Dowhaniuk’s first attorney (Counsel 1)
asked the court to release Dowhaniuk on his own recognizance
“with certain conditions.” The State opposed that request,
pointing out that Dowhaniuk was accused of choking Girlfriend,
and arguing that “because of the threat of risk that he creates to
[Girlfriend] and to the public, in general,” Dowhaniuk “should
remain in custody on the no-bail hold.” The State also noted that
Dowhaniuk had “a substantial criminal history” that included
twenty-two prior offenses. But the State told the court that, if it
was inclined to allow pretrial release, then “at a minimum” the

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State v. Dowhaniuk

court should order “electronic monitoring” of Dowhaniuk and
order “that there be absolutely no contact” with Girlfriend.

¶5 After some back-and-forth, Dowhaniuk addressed the
court directly and said, “If [the State wants] an ankle monitor, I’ll
do it.” In response, the State told the court that if Dowhaniuk was
“willing to agree to a home confinement with an ankle
monitoring,” it would “stipulate to that.” At the conclusion of the
hearing, the court granted Dowhaniuk’s request that he be
released on his own recognizance, with conditions, including that
Dowhaniuk obtain an ankle monitor. The court told Dowhaniuk
that he “[wouldn’t] be released until [he] got the monitor on.” The
court later memorialized its ruling in a written order (the Initial
Detention Order), in which it allowed Dowhaniuk to be “released
with home confinement and electronic monitoring” but
emphasized that Dowhaniuk was “to not be released until he
ha[d] been fitted for the electronic monitoring.”

¶6 Just over a month later, the district court—a different
judge this time—held a preliminary hearing where it received
evidence, heard arguments, and ordered that Dowhaniuk be
bound over for trial on both charges. Toward the end of the
hearing, after the court had announced its bindover decision,
Counsel 1 asked to address bail, and he informed the court that
Dowhaniuk had not been able to obtain an ankle monitor because
he lives “25 percent below the poverty level” and could not afford
the cost of the monitoring. For this reason, Counsel 1 asked the
court to modify the detention order to remove the ankle monitor
condition. The State opposed this request, again mentioning
Dowhaniuk’s criminal history and expressing concern for
Girlfriend’s safety. The court denied Dowhaniuk’s motion—a
ruling that Dowhaniuk has not appealed—and stated that if it
were to modify pretrial release at all, it “would change it the other
way,” presumably meaning that it would be inclined to remove
the possibility of pretrial release altogether. However, the court
explained that it could not “change [the release conditions] more
strictly without a motion from the State” and without giving

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State v. Dowhaniuk

Dowhaniuk “a chance to respond.” Thus, the court ruled that it
was “going to leave it the way that it [was],” and it explained that
if Dowhaniuk was going to be released, it was “going to be with
an ankle monitor.”

¶7 The next day, the State took the court up on its invitation,
and it filed a one-sentence written motion asking the court to
“hold [Dowhaniuk] in custody without bail.” A day later, at 11:29
a.m., the State electronically filed an amended motion—this one
consisting of three paragraphs—making the same request, but
this time mentioning Dowhaniuk’s criminal history, discussing
the severity of the allegations against him, and asserting that
Dowhaniuk would be a threat to Girlfriend specifically and
“would constitute a substantial danger to” the community at
large. Neither iteration of the State’s motion contained any
argument regarding any material change in circumstances that
might have occurred since the entry of the Initial Detention Order.
At 12:48 p.m. that same day—about 80 minutes after the State filed
its amended motion—the district court electronically signed an
order granting the State’s motion (the First Modification Order),
ordering that Dowhaniuk “be held without bail for the reasons
that appear in the motion.” Dowhaniuk did not appeal that order
within thirty days of its entry.

¶8 About five months later, after a different attorney (Counsel
2) had been appointed to represent Dowhaniuk, Counsel 2 made
an oral motion to modify the detention order to allow Dowhaniuk
to be released, with conditions. Counsel 2 argued that Dowhaniuk
was not a flight risk and could be released with “supervision”
such that he could be “kept from the alleged victim.” The State
responded by again recounting Dowhaniuk’s prior offenses and
by again expressing concern for Girlfriend’s safety. At the
conclusion of the argument, the court denied Dowhaniuk’s
motion, stating that it was “very concerned about the safety risk”
to Girlfriend. Some two months later, the court memorialized its
ruling in a written order (the Second Modification Order), which
stated that the existing “no bail hold remains.”

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State v. Dowhaniuk

¶9 Within thirty days of the entry of the Second Modification
Order, Dowhaniuk filed a notice of appeal. See Utah Code § 77-
18a-1(1) (allowing defendants to appeal, “as a matter of right,”
“an order denying bail”). While that appeal was pending,
Dowhaniuk asked the district court to reinstate his time for filing
an appeal from the First Modification Order, arguing that he had
not been “informed of his right to appeal” that order. See Utah R.
App. P. 4(f) (providing a mechanism for criminal defendants, in
some circumstances, to obtain reinstatement of their time “for
filing a direct appeal”). The court granted that motion, finding
that Dowhaniuk had been “deprived of the right to appeal
through no fault” of his own. (Quoting id. R. 4(f)(1).) Thereafter,
within thirty days of the court’s order reinstating his time to
appeal the First Modification Order, Dowhaniuk filed a second
notice of appeal. We then consolidated Dowhaniuk’s appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Dowhaniuk challenges both the First Modification Order
and the Second Modification Order. With regard to the First
Modification Order, he brings both procedural and substantive
challenges. On the procedural side, he asserts that the district
court violated applicable rules when it signed the First
Modification Order without giving him an opportunity to be
heard. 1 Such issues are reviewed for correctness. See Colin v. State,

1. Dowhaniuk asserts that the district court’s actions also violated
constitutional due process principles (in addition to procedural
rules). We acknowledge the strength of Dowhaniuk’s argument
on this point, see Springdale Lodging, LLC v. Town of Springdale, 2024
UT App 83, ¶ 31, 552 P.3d 222 (stating that “the opportunity to be
heard is a crucial aspect of a constitutional procedural due process
claim” because, “at a minimum, due process requires timely and
adequate notice and an opportunity to be heard in a meaningful
way” (cleaned up)), but we need not reach its merits because we
sustain Dowhaniuk’s rule-based challenge.

20250013-CA 5 2025 UT App 100
State v. Dowhaniuk

2008 UT App 305, ¶ 9, 193 P.3d 636 (“Whether procedural error
has occurred is a question of law that we review for correctness.”).

¶11 On the substantive side, Dowhaniuk points out that, in
entering the First Modification Order, the court did not make any
determination that a material change in circumstances had
occurred since the Initial Detention Order. If we reached the
merits of this challenge, we would review the district court’s
“determination regarding the presence or absence of a substantial
change in circumstances for an abuse of discretion.” State v. Groce,
2024 UT App 166, ¶ 18, 560 P.3d 200 (cleaned up), cert. denied, 568
P.3d 260 (Utah 2025). But because we find merit in Dowhaniuk’s
procedural challenge, we need not reach the merits of his
substantive challenge; we include the standard of review here,
however, because (as explained below) it is a factor in our
determination that it is the district court—and not this court—that
should consider this issue in the first instance.

¶12 In his appeal of the Second Modification Order,
Dowhaniuk seeks the same relief that he seeks in his appeal of the
First Modification Order, namely, reinstatement of the Initial
Detention Order. And because our disposition of Dowhaniuk’s
appeal of the First Modification Order affords Dowhaniuk that
same relief, we conclude—as discussed more fully below—that
Dowhaniuk’s appeal of the Second Modification Order has been
rendered moot. “The question of whether issues presented in an
appeal have been rendered moot by events occurring after the
appeal has been filed is a question that, by definition, arises for
the first time here on appeal, and therefore our decision is not
governed by any standard of review, and we decide the matter as
a question of law in the first instance.” Id. ¶ 19 (cleaned up).

ANALYSIS

¶13 We start by addressing Dowhaniuk’s appeal of the First
Modification Order, and we conclude that procedural infirmities

20250013-CA 6 2025 UT App 100
State v. Dowhaniuk

require us to vacate that order. Next, we explain that our
disposition of that appeal renders moot Dowhaniuk’s appeal of
the Second Modification Order.

I. The First Modification Order

¶14 As noted, Dowhaniuk raises both procedural and
substantive challenges to the First Modification Order. Before
addressing the merits of those challenges, we address the State’s
contention that Dowhaniuk’s arguments are unpreserved, and we
conclude that exceptional circumstances exist that serve to excuse
Dowhaniuk’s failure to raise his theories in the district court. After
that, we turn to the merits of Dowhaniuk’s claims, reaching only
the procedural challenges because we agree with Dowhaniuk that
the district court violated applicable rules by signing the First
Modification Order before affording Dowhaniuk sufficient time
to respond to the State’s motion.

A. Preservation

¶15 The State contends that the arguments Dowhaniuk raises
on appeal—both procedural and substantive—regarding the First
Modification Order are unpreserved for appellate review.
Ordinarily, an issue must first be raised in the district court to be
preserved for review on appeal. See Patterson v. Patterson, 2011 UT
68, ¶ 12, 266 P.3d 828 (stating that appellate courts “generally will
not consider an issue unless it has been preserved for appeal”).
The purpose of this rule is to “put the [district] court on notice of
an issue and provide it with an opportunity to rule on it.” State v.
Florez, 2020 UT App 76, ¶ 33, 465 P.3d 307 (cleaned up).

¶16 The “primary considerations underlying the preservation
rule are judicial economy and fairness.” Hillam v. Hillam, 2024 UT
App 102, ¶ 31, 554 P.3d 1137 (cleaned up). The rule promotes
judicial economy by encouraging “parties to resolve their
controversies at the trial level, allows the trial judge to correct
errors at the trial level, establishes a comprehensive record for

20250013-CA 7 2025 UT App 100
State v. Dowhaniuk

appeal, and helps alleviate the otherwise heavy burden on
appellate courts.” Id. (cleaned up). And the rule promotes fairness
because “if no objection was made in the [district] court, the
adverse party would not be compelled to overcome the objection
by presenting a rebuttal, providing an alternative argument,
establishing an alternative defense, or introducing new evidence
in an effort to overcome such an objection.” Id. (cleaned up). “Our
preservation requirement is self-imposed and is therefore one of
prudence rather than jurisdiction.” Patterson, 2011 UT 68, ¶ 13.
“Consequently, we exercise wide discretion when deciding
whether to entertain or reject issues that are unpreserved at trial
or waived on appeal.” State v. Johnson, 2017 UT 76, ¶ 12, 416 P.3d
443 (cleaned up).

¶17 When an issue is not properly preserved, we generally will
not consider it on appeal unless one of three established
exceptions to our preservation doctrines apply: “(1) the appellant
establishes that the district court committed plain error, (2)
exceptional circumstances exist, or (3) in some situations, if the
appellant raises a claim of ineffective assistance of counsel in
failing to preserve the issue.” State v. Low, 2008 UT 58, ¶ 19, 192
P.3d 867 (cleaned up).

¶18 The State is correct that the challenges Dowhaniuk now
raises regarding the First Modification Order were not brought to
the attention of the district court before entry of that order.
Indeed, Dowhaniuk filed no opposition at all to the State’s motion
for modification of the Initial Detention Order, and he therefore
raised no objections—whether procedural or substantive—to the
State’s motion before the district court granted it.

¶19 Dowhaniuk appears to acknowledge that the issues he
raises on appeal were not raised at the district court prior to entry
of the First Modification Order. But he nevertheless argues that
exceptional circumstances exist that excuse his failure to preserve
the issues he now raises. This exception to our preservation
doctrine is often invoked but rarely applied, usually “where a rare

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State v. Dowhaniuk

procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” State v. Van
Huizen, 2019 UT 01, ¶ 22, 435 P.3d 202 (cleaned up); see also
Johnson, 2017 UT 76, ¶ 29 (stating that the “exceptional
circumstances doctrine is applied sparingly” and is reserved “for
the most unusual circumstances where our failure to consider an
issue that was not properly preserved for appeal would have
resulted in manifest injustice” (cleaned up)). If a rare procedural
anomaly exists, it “opens the door to a deeper inquiry” in which
“additional factors must be considered to determine whether an
appellate court should reach an unpreserved issue.” Johnson, 2017
UT 76, ¶ 29. Those factors include “(a) whether the failure to
address an unpreserved issue would result in manifest injustice,
(b) whether there is a significant constitutional right or liberty
interest at stake, and (c) judicial economy.” Kelly v. Timber Lakes
Prop. Owners Ass’n, 2022 UT App 23, ¶ 21 n.3, 507 P.3d 357
(cleaned up).

¶20 This is one of those rare cases where exceptional
circumstances exist to excuse an appellant’s failure to preserve an
issue. Simply put, Dowhaniuk had no reasonable chance to make
arguments in opposition to the State’s motion because the court
granted that motion 80 minutes after it was filed, without
affording Dowhaniuk the opportunity to file a memorandum in
opposition. Indeed, our supreme court has found a rare
procedural anomaly where “the alleged error first arises in the
lower court’s final order or judgment and thus, leaves no
opportunity for the party to object.” In re D.B., 2012 UT 65, ¶¶ 34–
35, 289 P.3d 459 (cleaned up); see also 4 C.J.S. Appeal and Error § 297
(2025) (“The rule that questions should be raised at the first
opportunity, and that contentions must be raised below in order
to be available on appeal, does not apply where the question did
not exist or could not be raised below.”). Here, Dowhaniuk had
no reasonable opportunity to object to the State’s motion before
the court granted it. This situation thus presents a rare procedural
anomaly that did not allow Dowhaniuk a reasonable opportunity

20250013-CA 9 2025 UT App 100
State v. Dowhaniuk

to raise the legal theories he wishes to raise now and certainly
excuses his failure to raise them below.

¶21 We must therefore engage in a “deeper inquiry” into the
circumstances of this case to determine whether we should reach
Dowhaniuk’s unpreserved issues. See Kelly, 2022 UT App 23, ¶ 21
n.3 (cleaned up). And after doing so, we conclude that it would be
unfair to prevent Dowhaniuk from raising his appellate theories
in this case. The lack of preservation here cannot equitably be laid
at Dowhaniuk’s feet, when he was deprived of any reasonable
opportunity to respond to the State’s motion. And there is a
substantial liberty interest at stake, namely, Dowhaniuk’s
constitutional and statutory right to pretrial release, as long as
certain circumstances are met. See Utah Const. art. I, § 8(1) (stating
that, subject to three exceptions, “[a]ll persons charged with a
crime shall be bailable”); see also Utah Code § 77-20-201(1) (stating
that an individual charged with a crime “shall be admitted to bail
as a matter of right,” unless certain circumstances exist).

¶22 The State resists this conclusion by arguing that
Dowhaniuk could have preserved at least some of these issues by
raising them during the discussion at the conclusion of the
bindover hearing after the court stated that, while it was not
inclined to grant Dowhaniuk’s motion to modify, it might be
inclined to “change it the other way.” But at that point in time, the
State had yet to file a motion for modification; indeed, the only
modification motion on the table was Dowhaniuk’s oral motion to
remove the ankle monitor requirement, not the State’s motion to
request a no-bail order (which it did not file until a day or two
after the hearing). Notably, the court itself recognized that the
State had yet to file any motion at that point, stating that it could
not “change [the release conditions] more strictly without a
motion from the State” and without affording Dowhaniuk “a
chance to respond.” It is simply not fair to Dowhaniuk to expect
him to have anticipated, in advance, that the State would file a
motion and to have raised specific theories in response to that
motion before it had even been filed.

20250013-CA 10 2025 UT App 100
State v. Dowhaniuk

¶23 In short, Dowhaniuk had no reasonable opportunity to
raise to the district court, before the challenged order was entered,
any of the theories he is attempting to raise now on appeal. And
for the reasons discussed, this case thus presents an exceptional
circumstance that excuses Dowhaniuk’s failure to raise those
theories below. We therefore proceed to consider and address
Dowhaniuk’s appellate issues as though they had been properly
preserved for our review.

B. Procedural Challenges to the First Modification Order

¶24 Dowhaniuk raises procedural objections to the First
Modification Order. Chiefly, he asserts that the court failed to
afford him an opportunity to meaningfully respond to the State’s
motion to modify the Initial Detention Order, as required by
applicable procedural rules. We agree with Dowhaniuk.

¶25 This case is a criminal case, to which the Utah Rules of
Criminal Procedure apply. See Utah R. Crim. P. 1(b). One of those
rules governs the filing of motions, and that rule specifies (among
other things) when certain enumerated motions must be filed. See
id. R. 12(c). As relevant here, that rule at one point alludes to
situations in which “the time for filing a response to a motion . . .
has passed,” see id. R. 12(b), but neither that rule nor any other rule
of criminal procedure sets forth actual deadlines for filing
responses to motions. By contrast, the rules of civil procedure do
contain such a rule, see Utah R. Civ. P. 7, and the civil rules
“govern in any aspect of criminal proceedings where there is no
other applicable statute or rule,” at least so long as application of
the civil rules in criminal cases “does not conflict with any
statutory or constitutional requirement,” id. R. 81(f). Because there
is no rule of criminal procedure that sets forth deadlines for filing
responses to motions, and because application of rule 7 of the
Utah Rules of Civil Procedure in this criminal case would not
conflict with any statutory or constitutional requirement, we look
to rule 7 to provide the timing requirements for filing and
responding to the State’s motion to modify.

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State v. Dowhaniuk

¶26 Under rule 7, when a party files a motion with the court,
the nonmoving party is given up to fourteen days to “file a
memorandum opposing the motion.” Id. R. 7(d)(1). After briefing
is complete, either party is entitled to “file a request to submit the
motion for decision.” Utah R. Crim. P. 12(b). But ordinarily, “[i]f
no party files a written Request to Submit, or the motion has not
otherwise been brought to the attention of the court, the motion
will not be considered submitted for decision.” Id. There are
exceptions to these provisions that are applicable in certain
circumstances, see Utah R. Civ. P. 7(l), (m) (listing certain motions
that may be adjudicated without waiting for a response in
opposition), but none of those exceptions are applicable here.

¶27 In this case, the district court committed two procedural
errors in adjudicating the State’s motion to modify the Initial
Detention Order. First, it adjudicated the State’s motion without
affording Dowhaniuk the requisite fourteen-day window within
which to file a response. And second, the court adjudicated the
motion before receiving a request to submit or before the parties
otherwise brought the motion to the court’s attention. Even the
State acknowledges that “the district court should have given
Dowhaniuk the time and opportunity to respond before it entered
the [First Modification Order].”

¶28 These procedural errors mattered here. As already noted,
they deprived Dowhaniuk of any reasonable opportunity to
respond to the State’s motion. Even assuming for purposes of the
discussion that these errors are not per se harmful, Dowhaniuk
has persuaded us that he was prejudiced by the errors. Most
significantly, he was deprived of the opportunity to explain to the
court that under subsection (1) of the relevant statute, as a
prerequisite for granting the State’s motion to modify the Initial
Detention Order, the court needed to find “that there ha[d] been
a material change in circumstances” since the entry of the Initial
Detention Order. Utah Code § 77-20-207(1)(b); see also State v.
Groce, 2024 UT App 166, ¶ 57, 560 P.3d 200 (“[I]f circumstances
have not materially changed since the entry of the then-operative

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State v. Dowhaniuk

pretrial status order, the governing statute requires the district
court to deny the request for modification on that ground alone,
without engaging anew in the substance of the inquiry discussed
in the previous section and mandated by Utah law.”), cert. denied,
568 P.3d 260 (Utah 2025). This argument is far from frivolous,
because the State made no argument, in its motion to modify, that
there had been any such change in circumstances, and the district
court, in its order, made no findings to that effect.

¶29 Even here on appeal, the only argument the State makes on
this point is to assert that Dowhaniuk’s own financial troubles—
which the district court apparently didn’t know about when it
entered the Initial Detention Order—constitute a material change
in circumstances. But while Dowhaniuk’s apparently worsened
financial situation could perhaps justify a modification of the
Initial Detention Order in Dowhaniuk’s favor by removing the
ankle monitoring requirement, the State makes no effort to
explain how or why it could constitute the sort of “material
change in circumstances” that would justify modifying the order
in the State’s favor to no longer even afford Dowhaniuk the
opportunity to be released on an ankle monitor.2 See Utah Code

2. Dowhaniuk also asserts that the ankle-monitoring condition
constituted a “financial condition as a condition of release.” See
Utah Code § 77-20-207(2) (allowing a defendant to “move to
modify a pretrial status order if . . . the magistrate or judge
imposed a financial condition as a condition of release in the
pretrial status order” and “the defendant is unable to pay the
financial condition”). But we need not decide this issue in this
appeal, because this issue is relevant only to Dowhaniuk’s motions
to modify the pretrial status order. See id. § 77-20-207(1),
(2) (allowing either side to “move to modify a pretrial status order
. . . upon a showing that there has been a material change in
circumstances,” but allowing only “a defendant” to make such a
motion on the ground that the defendant is “unable to pay” a
“financial condition”). As already noted, Dowhaniuk did not
(continued…)

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State v. Dowhaniuk

§ 77-20-207(1), (2). In other words, Dowhaniuk has directed our
attention to seemingly strong arguments that, if he had been given
a chance to advance them prior to entry of the First Modification
Order, are reasonably likely to have made a difference to the
court’s analysis. Stated another way, we perceive a reasonable
probability of a different result, under these circumstances, had
Dowhaniuk been afforded the opportunity to respond to the
State’s motion.

¶30 Moreover, Dowhaniuk sustained tangible prejudice by
entry of the First Modification Order itself, which required him to
be held without bail and no longer allowed him the option of
pretrial release with conditions (such as an ankle monitor). The
State asserts that, due to his financial condition, he sustained no
actual prejudice from the entry of the First Modification Order,
because he apparently could not afford to pay for the ankle
monitor, one of the key conditions of release under the Initial
Detention Order. But Dowhaniuk has been detained now for
more than a year, and just because he represented that he could
not afford ankle monitoring at the time he sought modification, it
does not necessarily follow that he would never be able to afford
it, whether on his own or with the assistance of friends or family.
We find persuasive Dowhaniuk’s assertion that the removal of the
ankle monitoring option was prejudicial to him and cannot be
categorized simply as “no harm, no foul.”

¶31 Accordingly, based on these prejudicial procedural errors,
we vacate the First Modification Order, reinstate the Initial
Detention Order, and remand the matter for further proceedings.
During those proceedings, either party will of course be free to
make a renewed motion to modify the Initial Detention Order. If

appeal the denial of his first motion to modify, see supra ¶ 6, and
(as discussed below) his appeal of the Second Modification Order
has been rendered moot by our disposition of his appeal of the
First Modification Order (which, of course, concerns a motion that
the State made, not Dowhaniuk).

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State v. Dowhaniuk

the State elects to make such a motion, Dowhaniuk must be given
an opportunity to respond to it as set forth in the Utah Rules of
Criminal Procedure and (as applicable) in the Utah Rules of Civil
Procedure. Furthermore, as noted, no motion to modify the Initial
Detention Order based on subsection (1) of the relevant statute
may appropriately be granted absent a finding “that there has
been a material change in circumstances” since the entry of the
Initial Detention Order. Id. § 77-20-207(1)(b). And we decline the
State’s invitation to affirm the entry of the First Modification
Order on the alternative basis that—despite the absence of any
findings on this point—there existed a material change in
circumstances at the time of the State’s motion to modify the
Initial Detention Order. Determinations regarding the existence of
a material change in circumstances should ordinarily be made in
the first instance by the district court, and those determinations
are then reviewed deferentially on appeal. See supra ¶ 11. And we
are reluctant to vary that general rule here, especially where the
State’s argument on this point is, in our view, not clear enough to
remove it from the district court’s purview as a matter of law. See
supra ¶ 29. Accordingly, we leave any determinations regarding
changed circumstances for the district court to determine in the
first instance, in the event either party seeks to modify the
reinstated Initial Detention Order.

II. The Second Modification Order

¶32 Finally, a word about Dowhaniuk’s consolidated appeal of
the Second Modification Order.3 Our disposition of Dowhaniuk’s

3. The State contested the appeal of the Second Modification
Order on jurisdictional grounds, arguing (among other things)
that Dowhaniuk is not entitled to file this appeal as of right under
section 77-20-209 of the Utah Code because the Second
Modification Order was a denial of a request to modify a detention
order and merely kept the First Modification Order in place.
Although we dispose of Dowhaniuk’s appeal of the Second
(continued…)

20250013-CA 15 2025 UT App 100
State v. Dowhaniuk

appeal of the First Modification Order—vacating that order and
reinstating the Initial Detention Order—renders moot
Dowhaniuk’s appeal of the Second Modification Order.

¶33 The doctrine of mootness is not “a mere matter of
convenience or judicial discretion.” Utah Transit Auth. v. Local 382
of Amalgamated Transit Union, 2012 UT 75, ¶ 27, 289 P.3d 582.
Rather, “[m]ootness is a constitutional principle” that implicates
our “judicial power” to adjudicate cases, and if the issues
presented for our review on appeal have been rendered moot by
subsequent events, we lose jurisdiction over the appeal, at which
point we have no choice but to dismiss it. See id. ¶¶ 18–19, 27.

¶34 Whether an appeal is moot turns in part on whether an
order granting the requested relief would still be effective. See id.
¶ 14 (“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.” (cleaned up)); Behar v. Johnson, 2024 UT App 129, ¶ 19, 557
P.3d 607 (“An issue on appeal is considered moot when the
requested judicial relief cannot affect the rights of the litigants.”
(cleaned up)).

¶35 Our analysis on this point turns on the fact that Dowhaniuk
seeks the same relief in his appeal of the Second Modification

Modification Order on mootness grounds, we note here that the
statutory jurisdictional issue was squarely addressed in State v.
Stubbs, 2025 UT App 48, 569 P.3d 250, petition for cert. filed, June 11,
2025 (No. 20250646), where we held that a district court’s decision
to deny a motion to modify and “continue the no bail” order was
appealable as of right, id. ¶ 18; see also id. ¶ 23 (“[E]ven though this
is an appeal from a denial of [a] motion to modify, we conclude
that we have jurisdiction over this appeal.”). In short, we reject the
State’s assertion that—even absent the mootness issue—we
would not have jurisdiction to consider Dowhaniuk’s appeal from
the Second Modification Order.

20250013-CA 16 2025 UT App 100
State v. Dowhaniuk

Order that he sought in his appeal of the First Modification Order:
reinstatement of the Initial Detention Order. Indeed, in his appeal
of the Second Modification Order, Dowhaniuk asks us to “set
aside the bail modification” “[b]ecause the initial pretrial
detention . . . was then modified illegally.” Because we have
already (in connection with his appeal of the First Modification
Order) afforded Dowhaniuk all of the relief he seeks in his appeal
of the Second Modification Order, Dowhaniuk’s requested relief
in the appeal of the Second Modification Order would have “no
legal effect.” Utah Transit Auth., 2012 UT 75, ¶ 14 (cleaned up). We
therefore dismiss Dowhaniuk’s appeal of the Second Modification
Order as moot, given our disposition of his appeal of the First
Modification Order.

CONCLUSION

¶36 In entering the First Modification Order, the district court
committed prejudicial procedural error by not affording
Dowhaniuk a reasonable opportunity to respond to the State’s
motion to modify. While Dowhaniuk did not preserve for our
review any of the legal theories he now advances on appeal, this
is because he was deprived of the opportunity to do so. Given this
rare procedural anomaly, exceptional circumstances exist that
allow us to consider Dowhaniuk’s theories as though they had
been preserved. And for the reasons discussed, Dowhaniuk’s
procedural arguments are meritorious, and his substantive
arguments are at least good enough that we can’t consider the
procedural errors harmless. Accordingly, we vacate the First
Modification Order, reinstate the Initial Detention Order, and
remand this case to the district court for further proceedings
consistent with this opinion. Finally, given our disposition of
Dowhaniuk’s appeal of the First Modification Order, we dismiss
as moot Dowhaniuk’s appeal of the Second Modification Order.

20250013-CA 17 2025 UT App 100