Cite as 2023 Ark. 162 SUPREME COURT OF ARKANSAS No. CR-22-253
Opinion Delivered: November 9, 2023
RICKY LEE BURNETT PETITIONER APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-17-2541]
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, RESPONDENT JUDGE
DISMISSED AS MOOT.
SHAWN A. WOMACK, Associate Justice
Ricky Burnett has petitioned this court for a writ of certiorari and writ of habeas corpus.
He alleges the Benton County Circuit Court violated rules 8 and 9 of the Arkansas Rules of
Criminal Procedure. Specifically, Burnett alleges (1) that he appeared without counsel at his
pretrial bail hearing in violation of rule 8.2 and (2) that the circuit court failed to make specific
findings when setting Burnett’s bail at $350,000 in violation of rule 9.2. Burnett also argues
that both failures violate his due process rights and the right to be free from excessive bail under
both the Arkansas Constitution and the U.S. Constitution. In his petition, Burnett requested
that this court enter an order granting him a new pretrial release hearing where he would be
represented by counsel, prohibiting the circuit court from setting excessive bail, and ordering
that any person has the right to be represented by counsel at a pretrial hearing. However,
between the filing of his petition and now, the State nol-prossed Burnett’s charges, and the circuit court dismissed the petition to revoke probation in his other cases. Accordingly,
Burnett’s petition is moot.
I. Facts
On January 3, 2022, Ricky Burnett was arrested for building and detonating an explosive
device in a public park. On January 4, 2022, Burnett appeared for a pretrial release hearing via
Zoom. He appeared without counsel. At the hearing, the Deputy Prosecutor noted Burnett
had fourteen prior convictions, was on probation for eight felonies, and had been arrested
twenty-three times for failure to appear. Thus, he believed Burnett would not appear in this
case. The circuit court then reviewed the affidavit of probable cause and set Mr. Burnett’s bond
at $350,000 cash to ensure his appearance in this case. An order was entered finding that
probable cause existed to continue detaining Burnett. In its order, the circuit court noted
Burnett was not being appointed counsel in the hearing and it directed Burnett to contact the
public defender’s office.
On February 22, 2022, the State charged Burnett with criminal use of a prohibited
weapon and criminal acts involving explosives or a destructive device––both Class B felonies.
At his March 2, 2022, arraignment, Burnett was represented by a public defender and two
private attorneys, including Burnett’s appellate counsel. The public defender was allowed to
withdraw from the case at the hearing, and the circuit court asked whether Burnett’s hired
counsel wished to readdress the issue of bail, and Burnett’s counsel declined to do so. That
same day, a grand jury indictment was filed in the United States District Court, Western District
of Arkansas, alleging Burnett knowingly made a destructive device and knowingly possessed a
destructive device. United States v. Ricky Lee Burnett, 5:22-CR-50009-001, Indictment,
Document 1 (W.D. Ark. Mar. 2, 2022). Burnett pled guilty in federal court to one count of
2 aiding and abetting the possession of a destructive device and was sentenced to thirty-three
months’ imprisonment. On April 27, 2022, Burnett filed this “Petition for Writ of Certiorari
and Habeas Corpus.” On May 5, 2022, the State’s charges against Burnett were nol-prossed,
and the petitions to revoke his probation were dismissed.
II. Analysis
As a threshold matter, we address the issue of whether Burnett’s claims are moot.
Appellate courts will not review issues that are moot. Toland v. Robinson, 2019 Ark. 368, 590
S.W.3d 146 (citing Warren Wholesale Co., Inc. v. McLane Co., Inc., 374 Ark. 171, 286 S.W.3d
709 (2008)). To do so would be to render an advisory opinion, which this court will not do.
Id.
Between the filing of Burnett’s petition and now, the State nol-prossed Burnett’s
charges, and the circuit court dismissed the petition to revoke probation in his other cases.
Accordingly, Burnett cannot seek a writ of habeas corpus because he is no longer in custody.
See Ark. Code Ann. § 16-112-103 (Repl. 2016). Likewise, he cannot seek a writ of certiorari
for errors in his pretrial hearing because the charges were effectively dismissed. Because Burnett
is no longer eligible for the relief he seeks—as the charges were effectively dismissed—there is
no remaining legal controversy, and the petitions are moot. See, e.g., Trujillo v. State, 2016 Ark.
49, at 3–4, 483 S.W.3d 801, 803–04 (holding that “a case becomes moot when any judgment
rendered would have no practical legal effect upon a then-existing legal controversy”).
There are two exceptions to mootness: matters capable of repetition yet evading review
and matters of substantial public interest that are likely to be litigated in the future. Toland, 2019
Ark. 368, at 9–10, 590 S.W.3d at 152. Neither is applicable here. An issue capable of repetition
yet evading review arises when the justiciable controversy will necessarily expire or terminate
3 prior to adjudication. Id. Matters of substantial public interest that are likely to be litigated in
the future applies when there are considerations of substantial public interest which, if addressed,
would prevent future litigation. Id. Neither exception is used improvidently in situations that
are uniquely specific to an individual. See, e.g., Trujillo, 2016 Ark. 49, at 4, S.W.3d at 804;
Toland, 2019 Ark. 368, at 9–10, 590 S.W.3d at 152.
Here, Burnett’s claims do not fall within either exception to the mootness doctrine.
With respect to Burnett’s excessive-bail claim, claims regarding excessive bail are generally
specific to the individual defendant and are not an exception to the mootness doctrine. See
Trujillo, 2016 Ark. 49, at 8, S.W.3d at 806 (holding Trujilo’s claim that a $300,000 bail was
excessive was moot because he pled guilty and an exception to mootness did not apply); see
also Toland, 2019 Ark. 368, 9-10, 590 S.W.3d 146, 152 (holding Toland’s bail claim was moot
because he did not object to the bond at his hearing and he had posted bond before he filed his
complaint, thus an exception to mootness did not apply). Burnett’s claim that his $350,000 bail
is excessive is likewise moot. Like Trujillo and Toland, Burnett’s excessive-bail claim is specific
to him, and does not fall under either exception to mootness. In addition, Burnett failed to
preserve this argument below. See Arnold v. Spears, 343 Ark. 517, 525, 36 S.W.3d 346, 350–51
(2001) (explaining even in extraordinary-writ proceedings, the petitioner must have made the
argument below to raise them on appeal). Because the charges brought against Burnett were
essentially dismissed when they were nol-prossed by the State, and Burnett is no longer eligible
for the relief he seeks, this claim is now moot.
Turning to Burnett’s claim that he was improperly denied appointment of counsel at his
pretrial hearing, this claim is also specific to Burnett and is moot. Similar to Toland, Burnett’s
counsel failed to raise this issue when presented the opportunity by the circuit court at his
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Cite as 2023 Ark. 162 SUPREME COURT OF ARKANSAS No. CR-22-253
Opinion Delivered: November 9, 2023
RICKY LEE BURNETT PETITIONER APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-17-2541]
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, RESPONDENT JUDGE
DISMISSED AS MOOT.
SHAWN A. WOMACK, Associate Justice
Ricky Burnett has petitioned this court for a writ of certiorari and writ of habeas corpus.
He alleges the Benton County Circuit Court violated rules 8 and 9 of the Arkansas Rules of
Criminal Procedure. Specifically, Burnett alleges (1) that he appeared without counsel at his
pretrial bail hearing in violation of rule 8.2 and (2) that the circuit court failed to make specific
findings when setting Burnett’s bail at $350,000 in violation of rule 9.2. Burnett also argues
that both failures violate his due process rights and the right to be free from excessive bail under
both the Arkansas Constitution and the U.S. Constitution. In his petition, Burnett requested
that this court enter an order granting him a new pretrial release hearing where he would be
represented by counsel, prohibiting the circuit court from setting excessive bail, and ordering
that any person has the right to be represented by counsel at a pretrial hearing. However,
between the filing of his petition and now, the State nol-prossed Burnett’s charges, and the circuit court dismissed the petition to revoke probation in his other cases. Accordingly,
Burnett’s petition is moot.
I. Facts
On January 3, 2022, Ricky Burnett was arrested for building and detonating an explosive
device in a public park. On January 4, 2022, Burnett appeared for a pretrial release hearing via
Zoom. He appeared without counsel. At the hearing, the Deputy Prosecutor noted Burnett
had fourteen prior convictions, was on probation for eight felonies, and had been arrested
twenty-three times for failure to appear. Thus, he believed Burnett would not appear in this
case. The circuit court then reviewed the affidavit of probable cause and set Mr. Burnett’s bond
at $350,000 cash to ensure his appearance in this case. An order was entered finding that
probable cause existed to continue detaining Burnett. In its order, the circuit court noted
Burnett was not being appointed counsel in the hearing and it directed Burnett to contact the
public defender’s office.
On February 22, 2022, the State charged Burnett with criminal use of a prohibited
weapon and criminal acts involving explosives or a destructive device––both Class B felonies.
At his March 2, 2022, arraignment, Burnett was represented by a public defender and two
private attorneys, including Burnett’s appellate counsel. The public defender was allowed to
withdraw from the case at the hearing, and the circuit court asked whether Burnett’s hired
counsel wished to readdress the issue of bail, and Burnett’s counsel declined to do so. That
same day, a grand jury indictment was filed in the United States District Court, Western District
of Arkansas, alleging Burnett knowingly made a destructive device and knowingly possessed a
destructive device. United States v. Ricky Lee Burnett, 5:22-CR-50009-001, Indictment,
Document 1 (W.D. Ark. Mar. 2, 2022). Burnett pled guilty in federal court to one count of
2 aiding and abetting the possession of a destructive device and was sentenced to thirty-three
months’ imprisonment. On April 27, 2022, Burnett filed this “Petition for Writ of Certiorari
and Habeas Corpus.” On May 5, 2022, the State’s charges against Burnett were nol-prossed,
and the petitions to revoke his probation were dismissed.
II. Analysis
As a threshold matter, we address the issue of whether Burnett’s claims are moot.
Appellate courts will not review issues that are moot. Toland v. Robinson, 2019 Ark. 368, 590
S.W.3d 146 (citing Warren Wholesale Co., Inc. v. McLane Co., Inc., 374 Ark. 171, 286 S.W.3d
709 (2008)). To do so would be to render an advisory opinion, which this court will not do.
Id.
Between the filing of Burnett’s petition and now, the State nol-prossed Burnett’s
charges, and the circuit court dismissed the petition to revoke probation in his other cases.
Accordingly, Burnett cannot seek a writ of habeas corpus because he is no longer in custody.
See Ark. Code Ann. § 16-112-103 (Repl. 2016). Likewise, he cannot seek a writ of certiorari
for errors in his pretrial hearing because the charges were effectively dismissed. Because Burnett
is no longer eligible for the relief he seeks—as the charges were effectively dismissed—there is
no remaining legal controversy, and the petitions are moot. See, e.g., Trujillo v. State, 2016 Ark.
49, at 3–4, 483 S.W.3d 801, 803–04 (holding that “a case becomes moot when any judgment
rendered would have no practical legal effect upon a then-existing legal controversy”).
There are two exceptions to mootness: matters capable of repetition yet evading review
and matters of substantial public interest that are likely to be litigated in the future. Toland, 2019
Ark. 368, at 9–10, 590 S.W.3d at 152. Neither is applicable here. An issue capable of repetition
yet evading review arises when the justiciable controversy will necessarily expire or terminate
3 prior to adjudication. Id. Matters of substantial public interest that are likely to be litigated in
the future applies when there are considerations of substantial public interest which, if addressed,
would prevent future litigation. Id. Neither exception is used improvidently in situations that
are uniquely specific to an individual. See, e.g., Trujillo, 2016 Ark. 49, at 4, S.W.3d at 804;
Toland, 2019 Ark. 368, at 9–10, 590 S.W.3d at 152.
Here, Burnett’s claims do not fall within either exception to the mootness doctrine.
With respect to Burnett’s excessive-bail claim, claims regarding excessive bail are generally
specific to the individual defendant and are not an exception to the mootness doctrine. See
Trujillo, 2016 Ark. 49, at 8, S.W.3d at 806 (holding Trujilo’s claim that a $300,000 bail was
excessive was moot because he pled guilty and an exception to mootness did not apply); see
also Toland, 2019 Ark. 368, 9-10, 590 S.W.3d 146, 152 (holding Toland’s bail claim was moot
because he did not object to the bond at his hearing and he had posted bond before he filed his
complaint, thus an exception to mootness did not apply). Burnett’s claim that his $350,000 bail
is excessive is likewise moot. Like Trujillo and Toland, Burnett’s excessive-bail claim is specific
to him, and does not fall under either exception to mootness. In addition, Burnett failed to
preserve this argument below. See Arnold v. Spears, 343 Ark. 517, 525, 36 S.W.3d 346, 350–51
(2001) (explaining even in extraordinary-writ proceedings, the petitioner must have made the
argument below to raise them on appeal). Because the charges brought against Burnett were
essentially dismissed when they were nol-prossed by the State, and Burnett is no longer eligible
for the relief he seeks, this claim is now moot.
Turning to Burnett’s claim that he was improperly denied appointment of counsel at his
pretrial hearing, this claim is also specific to Burnett and is moot. Similar to Toland, Burnett’s
counsel failed to raise this issue when presented the opportunity by the circuit court at his
4 arraignment hearing and his charges have been nol-prossed. Toland, 2019 Ark. 368, 9–10, 590
S.W.3d at 152. And, although there may be a substantial public interest in a defendant’s right
to appointment of counsel at a pretrial hearing, “we do not improvidently utilize either
mootness exception.” Id. Simply put, the facts before this court do not justify the utilization
of the substantial public-interest exception to mootness. This does not necessarily foreclose the
utilization of the substantial public interest exception based on a defendant’s right to
appointment of counsel at a pretrial hearing under a different set of facts. Here, however, the
facts are clear that the charges brought against Burnett were nol-prossed, and he is no longer
eligible for the relief he seeks. He also failed to preserve this issue below. For these reasons,
this claim is also moot.
In sum, Burnett’s petition is moot. For this reason, we decline to reach the remaining
arguments on appeal, as any review of this case would constitute an advisory opinion.
Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for petitioner.
Tim Griffin, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for respondent.
John Wesley Hall, counsel for amicus curiae Deason Criminal Justice Reform Center;
and Malia N. Brink and Pamela Metzger, Deason Criminal Justice Reform Center SMU Dedman
School of Law, of counsel to amicus curiae Deason Criminal Justice Reform Center; amicus
curiae brief of Deason Criminal Justice Reform Center in support of the petitioner.