author: THORNE, Judge:

text:
    2002 UT App 333
    Andrew D. MOENCH, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee.
    No. 20010517-CA.
    Court of Appeals of Utah.
    Oct. 10, 2002.
    Bruce A. Jacques, South Jordan, for Appellant.

      Before BILLINGS, Associate P.J., ORME, and THORNE,- JJ.
   OPINION

THORNE, Judge:

¶ 1 Andrew D. Moench appeals the dismissal of his petition for post conviction relief. We reverse and remand for further proceedings.

BACKGROUND

¶ 2 Moench filed a Petition for Relief Under the Post Conviction Remedies Act. See Utah Code Ann. §§ 78-35a-101 to -304 (1996); Utah Rule of Civil Procedure 65C. In his petition, Moench alleged that: (1) his trial counsel was ineffective; (2) he entered his guilty plea without full knowledge; (3) he was sentenced under an unconstitutional statute; and (4) the sentencing court lacked jurisdiction to impose sentence.

¶ 3 The court reviewed the merits of Moench’s claims, found them unpersuasive, and dismissed the petition as frivolous. Moench appeals.

ISSUES AND STANDARD OF REVIEW

¶ 4 Moench argues that the trial court erroneously dismissed his petition for post conviction relief. An appeal from a judgment on a petition for post conviction relief raises questions of law reviewed for correctness, giving no deference to the trial court’s conclusion. See Wickham v. Galetka, 2002 UT 72,¶ 7, 462 Utah Adv. Rep. 64, — P.3d —, 2002 WL 1728629.

¶ 5 As part of our review, we must determine whether the court properly followed rule 65C. Construction of a rule presents a question of law, which we also review for correctness and without deference to the lower court’s conclusion. See Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 947 (Utah 1994).

ANALYSIS

¶ 6 The sole issue on appeal is whether the trial court erred when it summarily dismissed Moench’s petition for post conviction relief. Resolution of this issue turns on the proper construction of rule 65C(g) of the Utah Rules of Civil Procedure, which plainly states that upon receiving a petition, the trial court’s sole responsibility is to determine whether the petition is frivolous on its face. Rule 65C(g) states:

The assigned judge shall review the petition, and, if it is apparent to the court that any claim has been adjudicated in a prior proceeding, or if any claim in the petition appears frivolous on its face, the court shall forthwith issue an order dismissing the claim, stating either that the claim has been adjudicated or that the claim is frivolous on its face. The order shall be sent by mail to the petitioner. Proceedings on the claim shall terminate with the entry of the order of dismissal. The order of dismissal need not recite findings of fact or conclusions of law.
(2) A petition is frivolous on its face when, based solely on the allegations contained in the pleadings and attachments, it appears that:
■ (A) the facts alleged do not support a claim for relief as a matter of law;
(B) the claims have no arguable basis in fact; or
(C) the petition challenges the sentence only and the sentence has expired prior to the filing of the petition.

Id. (emphasis added). Pursuant to the plain language of rule 65C(g), when a court receives á petition for post conviction relief it must first evaluate the petition to determine whether any claim has been previously adjudicated or whether the petition “appears frivolous on its face.” Id. If the facts alleged in the petition do not support a claim for relief as a matter of law, or if the claims have no arguable basis in fact, then the court shall dismiss the petition as frivolous on its face. See id.

¶ 7 In another context, “frivolous” has been defined as “not grounded in fact,not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Utah R.App. P. 33(b). To determine whether a post conviction petition is frivolous, a trial court need only determine whether the petition contains sufficient facts to state a cause of action. C.f Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997) (concluding a Fed.R.Civ.P. 12(b)(6) motion in habeas corpus proceeding is roughly equivalent to a determination of whether a petition is frivolous on its face). Thus, a trial court must review a post conviction petition on its face to ensure that the petitioner pleaded each element of the relief sought. C.f. id.; Lancaster, 869 P.2d at 947-48. Only-after this threshold determination is completed may the court instruct the Attorney General to respond to the petition, conduct a hearing, or rule on the merits. See Utah R. Civ. P. 65C(h)-(j).

¶8 Here, during its initial review of the petition, rather than merely examining Moench’s petition on its face, the trial court addressed the merits of Moench’s claims. Regarding Moench’s ineffective assistance of counsel claim the court stated, “[i]n my opinion, [counsel] acted in the best interest[ ] of [Moench] and any claim to the contrary is not appropriate.” The court also reviewed the record and concluded that Moench knowingly and voluntarily entered his guilty plea and thereby waived his complaints regarding sentence enhancement. Finally, the court concluded that the sentencing court had original jurisdiction to impose sentence because Moench waived the forty-five day sentencing timeline. See Utah R.Crim. P. 22(a).

¶ 9 The court’s reasoning illustrates that rather than facially reviewing Moench’s petition, the court addressed its underlying merits. By its action, the court ignored the plain language of rule 65. See Lucero v. Warden of Utah State Prison, 841 P.2d 1230, 1231 (Utah Ct.App.1992) (holding that rule 65B prohibits a court from granting summary judgment on a petition without holding a hearing).

¶ 10 We have reviewed Moench’s petition and conclude that it is not frivolous on its face. Moench has alleged sufficient facts in the petition to establish each element of the relief sought. For example, to succeed on his ineffective assistance of counsel claim, Moench must prove that his counsel’s performance fell below an objective standard of reasonable professional judgment, thereby prejudicing him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Moench claimed that he entered a guilty plea because his counsel told him that he, the attorney, would later move the court to reduce his charges. His counsel failed to make such a motion. Furthermore, Moench alleges that his counsel knew that the gang enhancement statute under which Moench was sentenced had been declared unconstitutional, but did not object to its use. With these allegations, Moench has made a prima facie claim that his counsel was ineffective.

¶ 11 Additionally, Rule 11 of the Utah Rules of Criminal Procedure requires a trial court to verify that a defendant’s guilty plea is voluntary, that the defendant knows and understands all the constitutional rights being waived, that the defendant knows and understands the nature and elements of the crime to which he is pleading, and that the State is required to prove each element of a crime beyond a reasonable doubt. Utah R.Crim. P. 11(e)(2), (3), (4)(A). Moench alleged that his guilty plea was not voluntary because the plea was entered without Moench’s knowledge of all the elements of the gang enhancement statute and without knowledge that the State would have to prove each element of the gang enhancement statute beyond a reasonable doubt. Id. These alleged facts are sufficient to constitute a prima facie claim that the requirements of rule 11 were not met.

¶ 12 Moench next claimed that he was sentenced under an unconstitutional statute. In State v. Lopes, 1999 UT 24,¶ 16, 980 P.2d 191, the Utah Supreme Court declared unconstitutional Utah Code Ann. § 76-3-203.1(5)(c) (1995), a portion of the gang enhancement statute. Id. Moench’s petition stated that he was sentenced under this statute after it was declared unconstitutional, thus, Moench has made a prima facie claim that his sentence was suspect.

¶ 13 Finally, Moench argued that the trial court lacked jurisdiction to impose his sentence. Rule 22 of the Utah Rules of Criminal Procedure requires a sentence to be imposed not less than two days and not more than forty-five days after the entry of a guilty plea or verdict. Moench’s petition stated that he was sentenced more than forty-five days after entry of his plea. This allegation constitutes a prima facie claim that the requirements of rule 22 were not met.

¶ 14 Accordingly, the petition set forth sufficient factual claims to constitute a prima facie case for each of Moench’s requests for relief. Consequently, the trial court erred when it found the petition frivolous on its face. We reverse and remand, directing the trial court to order the Attorney General to file a response and to hold, if necessary, an evidentiary hearing.

CONCLUSION

¶ 15 For the foregoing reasons, we reverse and remand for further proceedings.

¶ 16 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K ORME, Judge.


source: Caselaw Access Project

author: THORNE, Judge.

license: Public Domain

text:
    2002 UT App 332
    David JOHANNESSEN and Linda Johannessen, Plaintiffs and Appellants, v. CANYON ROAD TOWERS OWNERS ASSOCIATION, Defendant and Appellee.
    No. 20010230-CA.
    Court of Appeals of Utah.
    Oct. 10, 2002.

      Russell J. Gallian, Gallian Westfall Wilcox & Wright, St. George, for Appellants.
    David H. Tolk and John N. Braithwaite, Plant Wallace Christensen & Kanell, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and THORNE.
   OPINION

THORNE, Judge.

¶ 1 Appellants David and Linda Johannes-sen (Johannessens) appeal the trial court’s grant of summary judgment in favor of Ap-pellee Canyon Road Towers Owners Association (Association), the dismissal of the Johan-nessens’ cross-motion for partial summary judgment, and the striking of a portion of an affidavit proffered by the Johannessens. We affirm.

BACKGROUND

¶ 2 The Johannessens are the current owners of condominium unit P9 within Canyon Road Towers Condominium Project (Canyon Road Towers), located in Salt Lake City, Utah. Canyon Road Towers was created in 1976 by Declaration of Condominium (Declaration). The Declaration was filed in the Office of the Recorder of Salt Lake County, Utah, and sets forth the rules and regulations governing Canyon Road Towers. The Association is comprised of all persons who own units at Canyon Road Towers and is managed by a committee, comprised of five unit owners, charged with the responsibility and authority to create and enforce reasonable rules covering the operation and maintenance of Canyon Road Towers.

¶ 3 Pursuant to the Declaration, every unit owner in Canyon Road Towers is obligated to pay his or her proportionate share of the common expenses as a monthly assessment. The proportionate share of common expenses is directly tied to the undivided ownership interest that an owner has in the common areas and facilities of Canyon Road Towers. The undivided ownership interest is computed by determining the ratio between the par value associated with a single unit, as specifically set forth in the Declaration, and the aggregate par value of all units in Canyon Road Towers. The Declaration assigned a par value of 6410 to the Johannessens’ unit, which resulted in that unit having a 1.282 percent ownership interest in the common areas and facilities.

¶ 4 During the purchase negotiations, the Johannessens learned that the par value on unit P9 was higher than the par value assigned to other units in the building. It was explained that the unit’s par value was higher because unit P9 was considered the penthouse unit and included many unique features that other units in the building did not possess. The increased par value correlated with a greater ownership interest in the common areas and a larger monthly assessment.

¶ 5 As a purchase condition made with the previous unit owners, the Johannessens insisted that the Association reduce the monthly assessment to $400 per month. The Association, through its management committee, agreed to decrease the assessment to $416 per month. The agreement was not reduced to writing, but a discussion of the agreement was noted in the management committee’s minutes. The Association arrived at the new assessment amount by adding the total monthly assessment amount of the two units directly underneath unit P9, which when combined had a square footage equal to unit P9, and then further reducing that figure by eliminating any duplicated maintenance and reserve fees.

¶ 6 In 1993, when the Johannessens finalized the purchased of unit P9, the Association billed the Johannessens $416 per month in assessment fees, increasing the fees proportionally whenever the Canyon Road Towers’ monthly assessments generally increased. The Johannessens enjoyed this reduced assessment amount until 1996.

¶ 7 In a letter dated August 5, 1996, the Association informed the Johannessens that the Association intended to increase the Jo-hannessens’ monthly assessment on October 1, 1996. The letter stated that the Association had acted without authority when it lowered the monthly assessment in 1993. The Johannessens paid the increased monthly assessment under protest and filed suit against the Association alleging breach of contract.

¶ 8 The Johannessens argued that the Association should be prevented from increasing the monthly assessment under the doctrine of promissory estoppel and pursuant to Utah Code Ann. § 16-6-22 (1999), an ultra vires statute. The Association responded that the management committee had acted without authority and contrary to state law when it agreed to lower the monthly assessment, because the ownership interest in common areas and facilities could not be altered without the unanimous consent of all unit owners.

¶ 9 The Johannessens filed a motion for partial summary judgment and the Association filed a motion for summary judgment. The Association also filed a Motion to Strike the Johannessens’ statement of facts as well as portions of David Johannessen’s affidavit. The trial court struck paragraphs 11, 13, 14, and 16 of David Johannessen’s affidavit and granted the Association’s Motion for Summary Judgment, dismissing with prejudice all of the Johannessens’ claims.

¶ 10 The trial court relied upon the following undisputed facts: (1) a contract was entered into between the Johannessens and the Association whereby the Association “effectively adjusted the par value assigned to the [Johannessens’] condominium unit and the [Johannessens] subsequently purchased the unit”; (2) the Johannessens purchased the unit relying on the Association’s promise that the monthly assessment would be $416 per month; (3) both the Declaration and Utah law required unanimous consent of all unit owners to modify the par value; (4) no such unanimous consent was obtained; and (5) the Johannessens had constructive knowledge of both the Declaration and Utah law. Based upon these factual findings, the trial court made the following conclusions of law: (1) the Association acted without authority and in violation of law when it adjusted the par value of unit P9; (2) the agreement to adjust the par value of unit P9 without unanimous consent of all unit owners contravened the Utah Condominium Act and the Declaration, thus, the agreement was an illegal contract; and (3) Utah Code Ann. § 16-2-23 (1999), an ultra vires statute, was not intended to enforce illegal contracts. The Johannessens now appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 11 The Johannessens appeal the trial court’s grant of summary judgment and the dismissal of their cross-motion for partial summary judgment. “Summary judgment should be granted only if there has been a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Harris v. Albrecht, 2002 UT App 98,¶ 8, 46 P.3d 241, cert. granted 53 P.3d 1 (quotations and citation omitted). “[I]n reviewing the district court’s grant of summary judgment, we review the court’s legal decisions for correctness, giving no deference, and review the facts and inferences therefrom in the light most favorable to the nonmoving party.” Id. (quotations and citations omitted).

¶ 12 In addition, we are presented with a question of statutory interpretation, which we review for correctness. See State v. McKinnon, 2002 UT App 214,¶ 3, 51 P.3d 729.

¶ 13 The Johannessens also appeal the trial court’s striking of three paragraphs of David Johannessen’s affidavit. We review a trial court’s decision to admit evidence to determine whether the court exceeded its permissible range of discretion. See Murdock v. Springville Mun. Corp., 1999 UT 39,¶ 25, 982 P.2d 65.

ANALYSIS

¶ 14 The Johannessens argue that the trial court erred in concluding that the 1993 agreement between the Association and the Johannessens was made in violation of the law and therefore unenforceable. To properly review this claim, we must first determine the applicable law and examine its effect on the present situation.

¶ 15 Utah Code Ann. §§ 57-8-1 to -37 (Supp.2000), the Condominium Ownership Act (the Act), applies to all condominium projects that have complied with the executing and recording requirements of the Act. The Declaration filed by Canyon Road Towers expressly provides that it was filed pursuant to the Act. The parties agree that the Declaration meets all the requirements of the Act. The Act therefore applies to Canyon Road Towers and requires each unit owner in a condominium complex to comply with the covenants, conditions, by-laws, and restrictions set forth in the condominium’s declaration. See Utah Code Ann. § 57-8-8.

¶ 16 Pursuant to both Utah Code Ann. § 57-8-7(2), and the Declaration, the total ownership interest in the common areas and facilities must equal 100%. Because the monthly assessment a unit owner is required to pay is directly proportional to the ownership interest in common areas and facilities assigned to that unit in the Declaration, if one owner’s assessment is altered, then every other owner’s ownership interest is also altered. Thus, any change in the monthly assessment results in an alteration of every unit owner’s ownership interest in the common areas and facilities. For this reason, the unit owners must consent to any change in the ownership interest in the common areas and facilities.

¶ 17 Utah Code Ann. § 57-8-7(2) provides:

Except as otherwise expressly provided by this act, the undivided interest of each unit owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the unit owners expressed in an amended declaration duly recorded.

¶ 18 When interpreting a statute, “this Court’s primary goal is to give effect to the legislature’s intent in light of the purpose that the statute was meant to achieve.” Boulder Mt. Lodge, Inc. v. Town of Boulder, 1999 UT 67, ¶ 15, 983 P.2d 570 (quotations and citations omitted). The best evidence of the true intent and purpose of the legislature in enacting the Act is found in the plain language of the Act. See id. Accordingly, to determine legislative intent we look first to the statute’s plain language and assume that the legislature used each term advisedly. See id.

¶ 19 Section 57-8-7(2) requires the consent of all unit owners before the ownership interest of any unit owner can be changed. A reduction in the monthly assessment paid by any unit owner alters the ownership interest of that unit, and in turn, alters the ownership interest and assessment fees of all other units in the complex. The facts are undisputed that the Association did not obtain the consent of all the unit owners before it reduced the Johannessens’ monthly assessment. Thus, the trial court properly concluded that the Association violated the Act when it decreased the assessment of Unit P9 in 1993.

¶ 20 The Johannessens also argue that the trial court erred when it granted the Association’s motion for summary judgment because the Association is estopped from increasing the Johannessens’ monthly assessment and because the contract is enforceable pursuant to Utah Code Ann. § 16-6-23 (1999). We review these arguments against the backdrop that the agreement to reduce the Johannes-sens’ monthly assessment violated the Act.

¶21 The Johannessens first argue that the Association is estopped from raising their monthly assessment. We are unpersuaded. To prove promissory estoppel a party must show that: “(1) the [promisee] acted with prudence and in reasonable reliance on a promise made by the [promisor]; (2) the [promisor] knew that the [promisee] had relied on the promise which the [promi-sor] should reasonably expect to induce action or forbearance on the part of the [prom-isee] or a third person; (3) the [promisor] was aware of all material facts; and (4) the [promisee] relied on the promise and the reliance resulted in a loss to the [promisee].” See J.R. Simplot Co. v. Sales King Int’l., Inc., 2000 UT 92,¶ 29, 17 P.3d 1100 (emphasis added)(alterations in original) (quotations and citations omitted).

¶ 22 Both the Act and the Declaration specifically state that prior to adjusting any unit’s monthly assessment, the Association must obtain the consent of all unit owners. The Johannessens admit that no such consent was ever obtained. Thus, if we conclude that the Johannessens had actual or constructive notice of either the Act or the Declaration, the Johannessens could not have reasonably relied upon the Association’s promise to lower their monthly assessment.

¶ 23 “[Constructive notice is imparted when documents are properly recorded.” See U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303,¶ 35, 990 P.2d 945. Constructive notice also arises from a duty to inquire, also known as inquiry, notice, when one has the burden of ascertaining “certain facts and circumstances.” See id. (quotations and citations omitted).

¶ 24 Here, as stated earlier, it is undisputed that the Declaration was properly recorded in Salt Lake County, Utah. Therefore, we conclude that the Johannessens were under constructive notice of the Declaration and, by incorporation, of the Act. Thus, the Johannessens knew or should have known that the entire population of the Canyon Road Towers unit owners had to consent to any change in the monthly assessment. See generally Chateaux Condo. v. Daniels, 754 P.2d 425, 426-27 (Colo.Ct.App.1988) (holding condominium unit owner had constructive knowledge of his share of common expenses because his deed specifically referred to the declaration of condominium).

¶25 Furthermore, the Johannes-sens knew that they were purchasing a unit in a condominium complex. They were thus put on inquiry notice to ensure that the Association, which lowered the monthly assessment, was empowered to do so and had complied with the Act.

¶26 The Johannessens next argue that Utah Code Ann. § 16-6-23 (1999) prohibits the Association from raising the Johan-nessens’ monthly assessment. In essence, the Johannessens argue that even though the Association acted without authority when it lowered unit P9’s monthly assessment, section 16-6-23 prevents the Association from now avoiding the contract. Section 16-6-23, in relevant part, provides:

No act of nonprofit corporations and no conveyance or transfer of real or personal property to or by such a corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer....

Section 16-6-23 limits the defense of ultra vires and provides third parties a measure of certainty when contracting with “a corporation in good faith without knowledge of the details of its articles of incorporation or of its internal operations.” Park v. Alta Ditch & Canal Co., 23 Utah 2d 86, 458 P.2d 625, 628 (Utah 1969). Here, we have concluded that the Johannessens had constructive knowledge of both the Act and the Declaration, including the limitations placed on changing the other owners’ ownership interests without their consent. Thus, the Johannessens cannot rely upon the protections afforded under § 16-6-23.

¶ 27 Finally, the Johannessens argue that the trial court erred when it struck portions of David Johannessen’s affidavit. We review a trial court’s admission of evidence to determine whether the court exceeded its permitted range of discretion. See Murdock, 1999 UT 39 at ¶ 25, 982 P.2d 65. We conclude that it did not. Furthermore, had the trial court admitted David Johannessen’s affidavit in its entirety, our conclusion that the trial court properly granted the Association’s motion for summary judgment would not change. Thus, if the court erred, error was “ ‘sufficiently inconsequential so no reasonable likelihood exists that the error affected the outcome of the proceedings.’ ” See C.T. v. Johnson, 1999 UT 35, ¶ 18, 977 P.2d 479 (citations omitted).

CONCLUSION

¶ 28 We conclude that the trial court properly granted the Association’s motion for summary judgment. The contract was contrary to both the Act and the Declaration and thus was unenforceable. Nor could the Jo-hannessens rely upon promissory estoppel to prevent the Association from increasing their monthly assessment, because it was unreasonable for the Johannessens to rely upon the Association’s promise. Likewise, the Jo-hannessens are not protected by section 16-6-23, because they had constructive knowledge of the Act and the Declaration. Finally, we conclude that the trial court did not abuse its discretion when it struck portions of David Johannessen’s affidavit. For the foregoing reasons, we affirm the trial court’s grant of summary judgment.

¶ 29 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JUDITH M. BILLINGS, Associate Presiding Judge.

      . Effective April 30, 2001, the Condominium Ownership Act was amended. Except as already noted herein, these amendments do not effect our substantive analysis, thus, we cite to the most recent version of the statute.

      . Effective May 1, 2000, Utah Code Ann. § 57-8-7(2) (1999) was amended. Former Section 57-8-7(2) is now embodied in Section 57-8-7(3). The amended statute requires the consent of only two-thirds of the unit owners expressed in a duly recorded amended declaration. It is undisputed that neither the Association nor the Johannessens obtained the consent of any of the unit owners not on the Management Committee prior to reducing the Johannessens’ monthly assessment.

      . Additionally, promissory estoppel should not be used to enforce a contract that is contrary to law. In Peterson v. Sunrider Corp., 2002 UT 43, 48 P.3d 918, the Utah Supreme Court addressed the enforceability of an illegal contract. Id. at ¶¶ 38-41. The court stated that "[djespite the general rule that 'every contract in violation of law is void’ ”, a contract that contravenes a statute "does not necessarily make the contract unenforceable.” See id. at ¶ 39. If a contract is found to be illegal, the reviewing court must determine "whether a statute or public policy demands that the contract be held unenforceable.” See id. In other words, the reviewing court must consider whether enforcing the contract is to the benefit or detriment of the parties the statute was designed to protect. See id.

      The plain language of the Act demonstrates that the Act was designed to protect the interests of condominium unit owners from experiencing changes to their ownership interest without their consent. Enforcing this illegal contract would alter the property interest of each Canyon Road Towers unit owner without their consent. Thus, promissory estoppel cannot be used to enforce this illegal contract.

      . Utah Code Ann. § 16-6-23 (1999) was repealed and replaced by Utah Code Ann. § 16-6a-304 (2001), which took effect April 30, 2001. Section 16-6a-304 provides, in relevant part: “(1) Except as provided in Subsection (2), the validity of corporate action may not be challenged on the ground that the nonprofit corporation lacks or lacked power to act." The Johannessens' argument similarly fails under the revised statute. The Johannessens’ constructive knowledge of the limitations set forth in the Act and the Declaration forecloses reliance on the revised statute as well as the statute in effect at the time of purchase.


text:
    2002 UT App 331
    AMERICAN FORK CITY, Plaintiff and Appellee, v. Larry J. SINGLETON, Defendant and Appellant.
    No. 20010706-CA.
    Court of Appeals of Utah.
    Oct. 10, 2002.

      Noall T. Wootton, American Fork, for Appellant.
    James Tucker Hansen, Duval, Hansen, Witt & Moreley, LLC, American Fork, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 Larry J. Singleton appeals his conviction for driving while under the influence of alcohol (DUI). Singleton argues that his arrest was unlawful and that' all evidence obtained incident to his arrest should be suppressed. We conclude that the trial court’s order denying the motion to suppress is incomplete and therefore remand for further proceedings.

BACKGROUND

¶ 2 Following a report alleging custodial interference, police officers encountered Singleton standing outside his house. While outside the home, the officers came to believe that Singleton had been driving while intoxicated. At Singleton’s invitation, the officers entered Singleton’s home. Once inside, the officers asked Singleton to perform several field sobriety tests. Soon after, Singleton became uncooperative and, according to Singleton, the police arrested him for obstruction of justice. Subsequently, at the police station, Singleton was told that if he cooperated with the police he would be released. Singleton registered a blood alcohol content of 0.249 on an intoxilyzer test and was then charged with DUI. Singleton filed a motion to suppress any evidence obtained following his arrest, claiming that his arrest was unlawful because the officer lacked probable cause to arrest him for obstruction of justice. At the hearing, the officer testified that he had arrested Singleton both for obstruction of justice and DUI and the State argued that a mistaken pronouncement of the basis for arrest did not taint the arrest. The court denied Singleton’s motion to suppress and ordered the prosecution to prepare an order. The order tendered by the prosecution, and signed by the court, contained no findings of fact or conclusions of law and provided in its entirety:

This matter came before the Court on Defendant’s Motion to Suppress Evidence. Counsel submitted memoranda in support of and opposition to this motion and a hearing was held on May 3, 2000 where testimony was presented and oral argument heard. After' the hearing, the Court sought supplemental memoranda from counsel, which were submitted.
THEREFORE, based on the memoran-da submitted by counsel, the evidence presented at the suppression hearing and the oral argument thereon, the Court enters the following ORDER:
1. That Defendant’s Motion to Suppress is denied.

The order neither explained the reasoning of the 'court nor resolved any of the factual disputes.

¶ 3 Singleton subsequently entered a conditional guilty plea, preserving his claim that his arrest was unlawful and that the evidence obtained at the police station after his arrest should be suppressed.

ANALYSIS

¶ 4' Singleton argues that his arrest was unlawful and that the evidence obtained following his arrest should be suppressed. We do not address this substantive argument because the trial court failed to articulate findings of fact or conclusions of law in its order denying Singleton’s motion to suppress. The parties have not addressed the issues of the absence of findings of fact and conclusions of law, but this fundamental defect makes it impossible to review the substantive issues without invading the trial court’s fact finding domain. See generally State v. Real Prop. at 633 E. 640 N., 942 P.2d 925, 931 (Utah 1997), cert. denied 530 U.S. 1262, 120 S.Ct. 2718, 147 L.Ed.2d 983; Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Corp., 909 P.2d 225, 231-32 (Utah 1995); Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987).

¶ 5 “Trial courts are given primary-responsibility for making determinations of fact.” State v. Pena, 869 P.2d 932, 935 (Utah 1994). Thus, “[i]t is inappropriate for an appellate court ... to assume the role of weighing evidence and mak[e] its own findings of fact.” Bailey v. Bayles, 2002 UT 58,¶ 19, 52 P.3d 1158. Stated another way, “[i]t is not within the appellate court’s authority to review de novo the factual underpinnings of a motion to suppress.” Pena, 869 P.2d at 939 n. 4. In another context, we have pointed to the fact-intensive nature of Fourth Amendment issues as a basis for not allowing appellate courts to conduct a de novo review. For example, regarding reasonable suspicion, the Utah Supreme Court has stated:

Reasonable-suspicion determinations are highly fact dependent, and the fact patterns are quite variable. It would be impractical for an appellate court to review every reasonable-suspicion determination de novo and then pronounce whether each unique factual setting rises to the level of reasonable suspicion as a matter of law. If we were to try, it is likely that the resulting case law would be [more] confusing and inconsistent.

Id. at 940 (footnote omitted); see also State v. Ramirez, 817 P.2d 774, 788 (Utah 1991) (“ ‘[T]he issues presented in search and seizure cases are highly fact sensitive.... Thus, detailed findings are necessary to enable this court to meaningfully review the issues on appeal.’ ” Quoting State v. Lovegren, 798 P.2d 767, 770 (Utah App.1990) (alterations in original)).

¶ 6 The same reasoning applies to determinations of probable cause to make an arrest. Appellate courts rely upon the trial court to make factual findings and give deference to the trial court regarding factual matters because “it is before [the trial] court that the witnesses and parties appear and the evidence is adduced.” Pena, 869 P.2d at 936. Logically, the trial court is “in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record.” Id.

¶ 7 Because the trial court failed to make findings of fact or conclusions of law regarding whether there was probable cause to arrest Singleton for either DUI or obstruction of justice, we are faced with addressing these issues “without the factual context crucial to such constitutional determinations.” Real Prop. at 633 E. 640 N., 942 P.2d at 931. Without these findings, we cannot engage in a meaningful review of the trial court’s ruling. Id.

¶ 8 Still, failure to make factual findings is not fatal in every instance. For example, failure to make factual findings is not reversible error if the facts in the record are “clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Acton, 737 P.2d at 999 (citation and quotations omitted).

¶ 9 Here, the facts on the record are in conflict and thus, do not clearly and uncon-trovertedly support the trial court’s denial of Singleton’s motion to suppress. For example, it is unclear whether Singleton was actually arrested for DUI or obstruction of justice, what Singleton was told regarding the basis for his arrest, or whether this was important. The trial court also made no factual findings determining whether the police had probable cause to arrest Singleton for either DUI or for obstruction of justice. These findings, among others, are necessary for this court to conduct a meaningful review of the facts and of the law as applied to those facts.

¶ 10 We do not, today, review the accuracy of the trial court’s conclusion that the motion to suppress should be denied, but hold, instead, that the trial court should have made findings of fact and conclusions of law in the record.

¶ 11 The judgment is vacated and we remand the ease for further proceedings.

WE CONCUR: JAMES Z. DAVIS, Judge, and PAMELA T. GREENWOOD, Judge.

      . The court in State v. Ramirez, 817 P.2d 774 (Utah 1991), framed its test differently. However, both Ramirez and the cases cited above require remand for factual determinations if the evidence presented at trial is in conflict and would require the appellate court to resolve this conflict. Id. at 787.
      In Ramirez, the court stated that when a trial court fails to make factual findings in the record, we " 'assume that the trier of facts found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it.’ ” Id. at 787-88 (footnote omitted) (quoting Mower v. McCarthy, 122 Utah 1, 245 P.2d 224, 226 (1952)). However, "[i]f the ambiguity of the facts makes this assumption unreasonable ... we remand for a new trial.” Ramirez, 817 P.2d at 788. In short, the court found that an appellate court may uphold a trial court "even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings.” Id. at 787-88 n. 6. However, if evidence is in conflict, the presumption does not apply. See id. at 788.
      Here, the evidence is conflicting and therefore, we cannot reasonably conclude that the trial court actually made findings. The most notable conflict arises regarding what was said to Singleton at the time of his arrest. Also unresolved is whether the trial court believed that an incorrect pronouncement of the reason for arrest tainted the arrest. We could not affirm the trial court’s denial of the motion to suppress without making findings of fact, something that Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158, forbids.


author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 343
    STATE of Utah, in the interest of B.S.V., a person under eighteen years of age. B.S.V., Appellant, v. State of Utah, Appellee.
    No. 20010890-CA.
    Court of Appeals of Utah.
    Oct. 18, 2002.
    J. Bryan Jackson, Cedar City, for Appellant.
    Scott Garrett, Cedar City Attorney’s Office, and Troy Little, Iron County Attorney, Cedar City, for Appellee.
    Before Judges BILLINGS, BENCH, and DAVIS.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 B.S.V. appeals his conviction of providing shelter to a runaway. See Utah Code Ann. § 62A-4a-501 (2000). We reverse.

BACKGROUND

¶2 “We recite the facts in a light most favorable to the decision of the fact finder.” In re J.F.S., 803 P.2d 1254, 1254 (Utah Ct. App.1990). According to the testimony presented before the juvenile court, B.S.V. was with some friends at the T.A. Truck Stop in Parowan, Utah, in the early morning of June 3, 2001. Two runaway girls, Jamie and Angela, were getting gas at the truck stop around 2 a.m. They began talking with B.S.V. and his friends. At the invitation of some of B.S.V.’s friends, the girls agreed to accompany them to the mountains. The girls, in a Suburban, followed a truck belonging to one of the boys. Two of the boys rode with the girls. They went to Yankee Meadow Reservoir, arriving around 3 a.m. Once there, they made a campfire and, according to Jamie, the group “just sat out and were talking and laughing” and drinking alcohol. None of them had any tents or sleeping gear. Around 6 a.m. that morning, the girls informed the boys that they were runaways. One boy, not B.S.V., hid the Suburban in the woods. The boys and girls all drove in the truck back to town, where they dropped off B.S.V. at his house.

¶ 3 B.S.V. slept all day until around 5 p.m. At that time, B.S.V.’s brother woke him up and asked if he wanted to go camping with him and some other friends. B.S.V. agreed, found his sleeping bag, and was picked up by his friends. On the way to their usual campsite, the group stopped at a bachelor party and picked up another friend. They arrived at the campsite around 9 p.m. and started a campfire. Again, they did not have any tents.

¶ 4 Later that night, more of B.S.V.’s friends left the bachelor party and arrived at the campsite. While Jamie arrived with this group, Angela remained at the bachelor party and did not arrive until early in the morning. Jamie first went to sleep in another boy’s sleeping bag. B.S.V. went to sleep in his sleeping bag around 4 or 5 a.m., and then got up and sat by the fire. Jamie also woke up and then slept for a little while in B.S.V.’s sleeping bag. Around 6 a.m., B.S.V. left with the same group he arrived with and went home. The girls returned to town with the others later that morning, and the police apprehended the girls that afternoon.

¶ 5 The juvenile court, in its oral findings, found B.S.V. knew the girls were runaways. It also found B.S.V. “did in fact intentionally and knowingly harbor the minors in that he did go to the mountains with them. He knew that they were being transported to and from the vehicle by others.” The court also found relevant the testimony that the group was drinking alcohol the first night, and stated, “I think even on the second night some of them had been to a bachelor party and came drunk. In fact, I think [B.S.V.] even admitted that.” In addition, the court found “that at least Jamie did in fact end up in his sleeping bag, by her testimony. That’s unrebutted. Providing or allowing someone to sleep in your sleeping bag in the mountains knowing that they’re runaways in this Court’s mind is an intentional and knowing act.” The juvenile court found B.S.V. guilty beyond a reasonable doubt. B.S.V. now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 B.S.V. argues the evidence is insufficient to support his conviction under Utah Code Ann. § 62A-4a-501 (2000), specifically because he did not “harbor” the runaways. Therefore, at issue is the statute’s use of the term “harbor.” When dealing with issues of statutory interpretation, we give the juvenile court’s decision no deference and review it for correctness. See C.T. ex rel Taylor v. Johnson, 1999 UT 35,¶ 6, 977 P.2d 479; In re D.B., 925 P.2d 178, 180 (Utah Ct.App.1996).

¶ 7 Furthermore, “[w]hen reviewing a juvenile court’s decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination.” In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234. We will reverse a juvenile court’s decision “only when it is ‘against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.’ ” Id. (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)).

ANALYSIS

¶ 8 B.S.V. argues the juvenile court erred in finding he harbored the runaways. At issue is the meaning of the term “harbor” in Utah Code Ann. § 62A-4a-501. The statute reads in pertinent part:

62A-4a-501. Providing shelter to a runaway — Reporting requirements — Division to provide assistance — Penalty.
(1) Any person who knowingly and intentionally harbors a minor and who knows at the time of harboring the minor that the minor is away from the parent’s or legal guardian’s home, or other lawfully prescribed residence, without the permission of the parent or legal guardian, shall promptly notify the parent or legal guardian of the minor’s location or report the location of the minor to the division. The report may be made by telephone or any other reasonable means.
(2) Unless the context clearly requires otherwise:
(a) “Promptly” means within eight hours after the person has knowledge that the minor is away from home without parental permission.
(b) “Shelter” means the person’s home or any structure over which the person has any control.
(5) Any person who knowingly and intentionally harbors a minor and who knows at the time of harboring the minor that the minor is away from the parent’s or legal guardian’s home, or other lawfully prescribed residence, without the permission of the parent or guardian and without making the notification required by this section is guilty of a class B misdemeanor.

Id.

¶ 9 B.S.V. argues he “did not [’Jharborf] in the common expressed use of the term.” To interpret the term “harbor,” we must first examine the plain language of the statute. See C.T. ex rel. Taylor v. Johnson, 1999 UT 35,¶ 9, 977 P.2d 479. “ ‘We presume that the legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning.’ ” Id. (quoting Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)); see also Utah Code Ann. § 68-3-11 (2000) (“Words ... are to be construed according to the context and approved usage of the language.... ”). “In the case of unambiguous statutes, this court has a long history of relying on dictionary definitions to determine plain meaning.” State v. Redd, 1999 UT 108,¶ 11, 992 P.2d 986; see, e.g., Salt Lake City v. Roberts, 2002 UT 30,¶ 29, 44 P.3d 767; In re V.T., 2000 UT App 189 at ¶ 10, 5 P.3d 1234; In re D.B., 925 P.2d at 181.

¶ 10 The definitions of the transitive verb form of “harbor” are (1) “to give shelter or refuge to: take in,” and (2) “to receive clandestinely and conceal (a fugitive from justice).” Webster’s Third New World International Dictionary 1031 (1986). We conclude the first dictionary definition of “harbor” is more appropriate as it allows us to give meaning to all of the statute’s provisions. Specifically, since “shelter” is defined in the statute, see Utah Code Ann. § 62A-4a-501(2)(b), we conclude the legislature intended to equate the act of “harboring” with giving “shelter.”

¶ 11 Under the relevant definition of “harbor,” B.S.V. would have had to “give shelter or refuge to” the runaways. Webster’s Third New World International Dictionary 1031 (1986). There is support for defining “harbor” in this manner in other jurisdictions. For example, in a similar case involving harboring a runaway, a Texas court stated, “[t]he word ‘harbor’ has universally accepted meanings. Its most commonly recognized meanings as a verb are ‘to give shelter to’ and ‘to give refuge to’ someone.” Urbanski v. State, 993 S.W.2d 789, 793 (Tex.App.1999) (citing several dictionaries); see also United States v. Lopez, 521 F.2d 437, 441 (2d Cir.1975) (“Although ‘harbor’ has been defined to have several meanings, including ‘to receive clandestinely and conceal,’ its primary meaning is ‘to give shelter or refuge to,_’ ”) (Citations omitted.).

¶ 12 While the juvenile court found that “[providing or allowing someone to sleep in your sleeping bag in the mountains knowing that they’re runaways in this Court’s mind is an intentional and knowing act,” this finding alone is insufficient to establish that B.S.V. gave shelter or refuge to the runaways. Because section 62A-4a-501 defines “shelter” as “the person’s home or any structure over which the person has any control,” Utah Code Ann. § 62A-4a-501(2)(b), we cannot say that allowing a runaway to sleep in one’s sleeping bag for several hours at an open campsite in the mountains with others present meets the statutory definition of “shelter.” Cf. Urbanski, 993 S.W.2d at 793-94 (concluding defendant harbored the runaway in part because he arranged for both of them to stay at his friend’s house overnight).

¶ 13 When B.S.V. went to sleep Saturday night at 4 or 5 a.m., Jamie was already asleep in another boy’s sleeping bag. It was only after both Jamie and B.S.V. woke up that Jamie then went to sleep again near the fire in B.S.V.’s sleeping bag. Because B.S.V. left at 6 a.m., Jamie only briefly used B.S.V.’s sleeping bag.

¶ 14 Moreover, B.S.V. did not accompany the runaways to the mountains on the night he was convicted of harboring them. Rather, he was already at a campsite where the runaways later arrived. The record further indicates B.S.V. and the runaways did not even have plans to meet that night, because B.S.V. decided to go camping only when his brother woke him up late Saturday afternoon and invited him. Cf. Urbanski, 993 S.W.2d at 793 (explaining defendant harbored the runaway in part because he made arrangements with her before she ran away and picked her up after she sneaked out of her parents’ home).

¶ 15 Therefore, the evidence, m the light most favorable to the juvenile court’s decision, shows only that B.S.V. was present at the campsite where the runaways later arrived, without having had plans to meet them there, and that one runaway briefly used his sleeping bag early in the morning. We conclude this evidence is insufficient to constitute “harboring” because B.S.V. did not give shelter or refuge to the runaways.

¶ 16 We therefore reverse B.S.V.’s conviction for providing shelter to a runaway.

¶ 17 WE CONCUR: RUSSELL W. BENCH, and JAMES Z. DAVIS, Judges.

      . There are no written findings in this case.

      . The girls had stolen the Suburban from their foster parents.


author: GREENWOOD, Judge:

text:
    2002 UT App 340
    STATE of Utah, in the interest of F.M., S.M., D.M., and C.M., persons under eighteen years of age. S.S., Appellant, v. State of Utah, Appellee.
    No. 20010128-CA.
    Court of Appeals of Utah.
    Oct. 18, 2002.

      Sharon L. Preston, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and John M. Peterson, Assistant Attorney General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, and Craig M. Bunnell, Sandy, Guardians Ad Litem.
    Before Judges BILLINGS, GREENWOOD, and ORME.
   MEMORANDUM DECISION

GREENWOOD, Judge:

I. Termination of Parental Rights

¶ 1 S.S. (Mother) appeals the juvenile court’s order terminating her parental rights. Mother argues there was insufficient evidence to support certain factual findings made by the juvenile court, the legal conclusions were unsupported by factual findings, and there was insufficient evidence to support beyond a reasonable doubt the finding that Mother’s continued custody of the children would likely result in serious emotional or physical damage to them.

¶2 First, Mother argues that there was insufficient evidence to support some of the juvenile court’s factual findings. “Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous.” In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963 (quotations and citation omitted). Mother challenges portions of a finding regarding the best interests of the children; namely, that Mother is still codependent on the children’s father (Father) and unable to protect the children from Father. We conclude that in addition to the findings incorporated by the juvenile court from previous hearings, sufficient evidence was presented at the termination trial to support the court’s findings.

¶ 3 The evidence presented included testimony from Mother’s therapist regarding Mother’s continued co-dependency issues. Mother’s therapist testified that Mother would need over a year of further therapy to treat her co-dependency issues, but even then, it was far from certain she could overcome them. In addition, Mother’s case worker testified that on numerous occasions Mother had talked to her about leaving Father, regaining custody of her children, and then getting back with Father. Further, Mother admitted to having contact with Father just two weeks before the trial when she accepted a ride home from him. Mother also admitted that although Father had recently moved out of the family’s trailer home, Father was still living in the same trailer park as Mother. Finally, the court heard evidence that Father was recently substantiated for physical abuse while Mother was living in the same household and Mother did nothing to stop the abuse. Therefore, the evidence supports the court’s findings of Mother’s codependency and inability to protect the children.

¶ 4 Mother also challenges the court’s conclusions that she neglected the children, is unfit or incompetent, that there has been a failure of parental adjustment, and that she is unwilling or unable to remedy the circumstances that led to the children’s placement with the Division of Child and Family Services (DCFS). “Conclusions of law are reviewed by this court for correctness, giving no deference to the trial court. However, we do afford the juvenile court some discretion in applying the law to the facts.” In re J.B., 2002 UT App 267, ¶ 15, 53 P.3d 958 (citations omitted). Mother argues, inter alia, that the court erred in focusing on Mother’s past and not considering her abilities at the time of the termination proceeding. Evidence was presented that although it appeared Mother made substantial progress in completing her service plan, she failed to internalize the skills she had learned and was unable to offer the structured environment that her special needs children require. See In re C.Y., 765 P.2d 251, 255 (Utah Ct.App.1988) (noting effort to improve one’s parenting skills is not determinative if “no significant improvement in [the parent’s] parenting skills has been noted despite [the parent’s] efforts”); see also In re S.L., 1999 UT App 390, ¶ 28 n. 5, 995 P.2d 17 (noting Mother’s progress on second treatment plan and desire to regain custody of her son, alone, is not persuasive in determining whether juvenile court’s findings are clearly erroneous). We have carefully reviewed both the evidence in this case and the juvenile court’s findings of fact and conclude that there is no error in the juvenile court’s conclusions of law.

¶ 5 Finally, Mother argues that neither the findings nor expert testimony presented were sufficient to terminate her parental rights under the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901-1963 (1994). Under ICWA, the juvenile court “must make a determination that ‘continued custody of the children by the parent ... is likely to result in serious emotional or physical damage to the child.’ That determination must be supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses.” In re S.A.E., 912 P.2d 1002, 1004 (Utah Ct.App.1996) (quoting 25 U.S.C. § 1912(f) (1994)).

¶ 6 Mother takes issue with the testimony of Ms. Watson, the expert witness called specifically to address compliance with ICWA. Mother argues that Ms. Watson had no personal knowledge of the case and that she based her testimony only on her review of the case file. However, Ms. Watson testified that her opinion was based not only on her review of the file, but also on case staffing done with the family’s ongoing case manager for the Navajo Nation who had prepared an extensive file noting the “parent’s abusive history, ... and the seriousness of the children’s behavior.” In addition, Ms. Watson’s opinion was formed after talking with the family’s DCFS social worker. “ ‘The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.’ ” State v. Kelley, 2000 UT 41, ¶ 23, 1 P.3d 546 (quoting Utah R. Evid. 703).

¶ 7 Based on Ms. Watson’s testimony and the extensive files of the Navajo Children and Family Service program (NCFS), along with the testimony from the children’s social workers regarding the children’s severe behavioral disorders and their need for a competent custodian who can offer a very structured environment, the juvenile court concluded that returning the children to their Mother would likely result in serious emotional and physical damage to the children. Because the evidence supports that Mother is not in a position to offer the structured environment these children require, and because the children’s extreme behaviors are due to the past parenting they received while in Mother’s home, the court had ample evidence to support its findings beyond a reasonable doubt, as required by ICWA.

¶ 8 Based on the foregoing, we affirm.

II. Briefing

¶ 9 We wish to comment upon the Attorney General office’s failure to file a brief on behalf of DCFS. Instead of providing independent case law and analysis supporting the juvenile court’s decision to terminate Mother’s parental rights, the Attorney General merely concurred with the Guardians Ad Litem’s (the Guardian) brief. We believe that the Attorney General’s concurrence is wholly inappropriate in this case because of the different parties and interests represented by the State and the Guardian. See Utah Code Ann. § 78-3a-909(l) (1996) (“The attorney general shall represent the [S]tate in all appeals under this chapter.”); Utah Code Ann. § 78-3a-912(2) (1996) (stating a guardian ad litem “shall represent the best interest of each minor ... ”); see also In re T.J., 945 P.2d 158, 163 (Utah Ct.App.1997) (stating DCFS and Attorney General’s office protect the interests of the State, while the Guardian Ad Litem’s office represents the interests of the children and these interests “are distinct and can differ”).

¶ 10 Given the absence of briefing for DCFS, the briefs in this case were inadequate to provide a full picture for this court regarding the appropriateness of the termination of Mother’s parental rights. This necessitated that we meticulously comb the record to determine whether there was sufficient evidence to support the juvenile court’s decision. In this case, Mother had attempted to rehabilitate herself and had complied to some extent with the service plans. Therefore, DCFS was required to carefully and thoroughly demonstrate that the juvenile court acted appropriately in terminating Mother’s parental rights. Additionally, in light of the higher standard of proof required in Mother’s case under ICWA, and the fact that there are very few published decisions regarding the termination of parental rights of Indian children, it was that much more incumbent upon the Attorney General’s office to have filed a brief. Court-ordered termination of parental rights must be conducted with appropriate seriousness and thoroughness by all involved. The potential effects of child welfare proceedings on families, children, and society are too important to treat them in a perfunctory or casual manner. We therefore urge the Attorney General’s office to submit briefs in the future, on behalf of its client, the State.

¶ 11 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

        . See Utah Code Ann. §§ 78-3a-104(8), -320(1) (Supp.2002) (stating that juvenile court is to make findings of “substantiated, unsubstantiated, or without merit” regarding allegations of severe child abuse or neglect).

      . Mother also argues that one of the court’s findings was based on a report not offered into evidence; therefore, Mother did not have an opportunity to rebut the allegation. However, the State requested that the court take judicial notice of all the conclusions, findings, orders, and official documents previously presented and accepted by the juvenile court in Mother’s case. The court took judicial notice without objection from Mother’s counsel. Courts may “take judicial notice of the records and prior proceedings in the same case." Riche v. Riche, 784 P.2d 465, 468 (Utah Ct.App.1989) (citation omitted); see Utah R. Evid. 201. Therefore, the court did not err in considering the report.


author: JACKSON, Presiding Judge:

text:
    2002 UT App 345
    STATE of Utah, Plaintiff and Appellee, v. Joseph MADSEN, Defendant and Appellant.
    No. 20010912-CA.
    Court of Appeals of Utah.
    Oct. 18, 2002.

      Happy Morgan, Grand County Public Defender, Moab, and Sam N. Pappas, Rilling & Associates, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Joanne C. Slotnik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BENCH, and ORME.
   OPINION

JACKSON, Presiding Judge:

¶ 1 Madsen appeals his convictions for one count of damaging a jail, a third degree felony, in violation of Utah Code Ann. § 76-8^418 (1999), and one count of theft, a class B misdemeanor, in violation of Utah Code Ann § 76-6-404 (1999). We affirm.

BACKGROUND

¶2 Prior to trial, the trial court heard arguments on Madsen’s motion to prohibit unnecessary courtroom security. Madsen wore leg irons at that hearing, where Deputy Freestone testified that Madsen was a “management problem” at the jail, that he had been in numerous fights, and that his co-defendant had said he would attempt to escape if given the opportunity. The trial judge indicated that the leg irons were not visible due to an apron that was placed in front of Madsen’s table to prevent the jury from viewing the irons. The court allowed Madsen to be seated prior to the jury’s entrance to prevent the jury from viewing his leg irons. In the courtroom, the jury could see two uniformed guards, one placed behind the two defendants during trial.

¶ 3 At trial, Officer Butler improperly testified regarding previously excluded evidence. After trial, the court denied Mad-sen’s motion for a mistrial and his request to postpone sentencing in order to obtain a presentence investigation report. Madsen appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 4 Madsen’s first assignment of error is that the trial court allowed excessive courtroom security during his trial. He argues that he was thus denied his constitutional rights to a fair trial and the presumption of innocence. Accordingly, “we applfy] close judicial scrutiny and review! ] the trial court’s decision for correctness.” State v. Kell, 2002 UT 19, ¶ 11, 440 Utah Adv. Rep. 20,— P.3d —, 2002 WL 193025.

¶ 5 Next, Madsen challenges the trial court’s denial of his motion for a mistrial. “We review a trial court’s denial of a motion for mistrial for abuse of discretion.” State v. Decorso, 1999 UT 57, ¶ 38, 993 P.2d 837, cert denied, 528 U.S. 1164, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000).

¶ 6 Finally, Madsen challenges the trial court’s interpretation of Utah Code Ann. § 77-18-1 (Supp.2001). He contends that the trial court erroneously interpreted section 77-18-1 as, giving the court discretion to deny the preparation of presentence reports. “We review for correctness a trial court’s statutory interpretation, according it no particular deference. In interpreting a statute we give the words their usual and accepted meaning. We first examine the statute’s plain language, resorting to other methods of statutory interpretation only if the language is ambiguous.” State v. Barrick, 2002 UT App 120, ¶ 4, 46 P.3d 770 (quotations and citations omitted).

ANALYSIS

I. The Fairness of Madsen’s Trial

¶ 7 Madsen first argues that by placing two uniformed guards in the courtroom, one of whom was directly behind'him, and by allowing him to be shackled, “the trial court created an inherently prejudicial situation that violated his right to a fair trial.” State v. Daniels, 2002 UT 2, ¶ 20, 40 P.3d 611. Regarding this right, the Utah Supreme Court in Daniels explained:

The right to a fair trial is a fundamental constitutional right secured by the due process and equal protection guarantees of the Sixth and Fourteenth Amendments. Central to this right “is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of ... other circumstances not adduced as proof at trial.” The presumption of innocence is a component of this guarantee of the right to a fair trial and has become a basic element of our criminal justice system. Even though the trial judge has broad latitude to control and manage the proceedings to preserve the integrity of the trial process, when a courtroom action or arrangement is challenged as inherently prejudicial, we consider whether the practice presents an unacceptable risk of bringing into play impermissible factors that might erode the presumption of innocence. If the challenged practice is not inherently prejudicial, the judgment of the trial court will be affirmed. If the practice is inherently prejudicial, we must then consider whether the prejudicial practice is outweighed by any competing essential state interests.

Id. (quoting Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986) (internal citations omitted)). Thus, we first consider whether putting irons on Mad-sen’s legs or,the placement of the two uniformed guards in the courtroom was “inherently prejudicial, presenting an unacceptable risk of introducing impermissible factors that impinge upon the presumption of innocence.” Id.

¶8 Visibly shackling a defendant is inherently prejudicial because it suggests to the minds of jurors that he is guilty, dangerous, or untrustworthy. See Holbrook, 475 U.S. at 568-69, 106 S.Ct. at 1345-46. However,

if the jury cannot see the defendant’s shackles, there can be no prejudice. See, e.g., United States v. Mayes, 158 F.3d 1215, 1226-27 (11th Cir.1998) (“The restraints in this case were not capable of affecting the jury’s attitude in any way because the district court took great care to ensure that the jury never saw that the appellants were wearing leg irons.”); United States v. Brazel, 102 F.3d 1120, 1158 (11th Cir.1997) (“Defendants, moreover, have not shown a realistic likelihood that they were prejudiced by what was done, the shackles having been screened from view.”).

Moon v. Head, 285 F.3d 1301, 1317-18 (11th Cir.2002).

¶ 9 In the present ease, Madsen does not allege or indicate record support for the proposition that the leg irons were visible to the jury. Indeed, the record suggests the opposite: an apron was placed in front of Madsen’s table to prevent the jury from viewing his leg irons. Moreover, the trial judge indicated that they were not visible and allowed Madsen to be seated prior to the jury’s entrance. Thus, inherent prejudice does not attach here.

¶ 10 Madsen also argues that the placement of two uniformed guards in the courtroom was inherently prejudicial.

In [Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)], uniformed state troopers sat in the courtroom in addition to the regular security force, and the Supreme Court considered the range of inferences that a juror might reasonably draw from the presence of the officers in determining whether the practice was inherently prejudicial. The Hol-brook Court explained that even though “it is possible that the sight of a security force within the courtroom might under certain conditions ‘create the impression in the minds of the jury that the defendant is dangerous or untrustworthy,’ ” the presence of uniformed security personnel in a courtroom was different from shackling a defendant and not inherently prejudicial because of “the wider range of inferences that a juror might reasonably draw from the officers’ presence.”

Daniels, 2002 UT 2 at ¶ 24, 40 P.3d 611 (quoting Holbrook, 475 U.S. at 569, 106 S.Ct. at 1346 (emphasis added)). Madsen has not shown that a “wider range of inferences,” id., could not be reasonably drawn from the guards’ presence. We also note that in the present case, “[t]he security was even less intrusive than that in [.Holbrook ], where the Court held that it was not prejudicial for four armed, uniformed state troopers to occupy the seats immediately behind the defendant.” State v. Gardner, 789 P.2d 273, 281 (Utah 1989). Thus, the placement of the uniformed guards in the present case was not inherently prejudicial and did not “present[] an unacceptable risk of introducing impermissible factors that impinge upon the presumption of innocence.” Daniels, 2002 UT 2 at ¶ 20, 40 P.3d 611. “Because we conclude that the practiced] challenged in this case [were] not inherently prejudicial, we need not engage in a balancing of the risk of unfair prejudice against security interests in this case.” Id. at ¶ 26. We conclude that the trial court did not err regarding courtroom security. Accordingly, we reject Madsen’s challenge to the fairness of his trial.

II. Denial of Madsen’s Motion for Mistrial

¶ 11 Next, Madsen contends that the trial court abused its discretion when it denied his motion for a mistrial. Madsen moved for a mistrial after Officer Butler improperly testified regarding a previously excluded fact, namely that Madsen was incarcerated in punitive isolation. The trial court ruled that Officer Butler’s testimony was not sufficiently prejudicial to warrant a mistrial.

¶ 12 “ ‘Unless a review of the record shows that the court’s decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court’s decision was an abuse of discretion.’ ” State v. Decorso, 1999 UT 57, ¶ 38, 993 P.2d 837 (quoting State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997) (emphasis omitted)). Our review of the record reveals nothing that would support the assertion that Officer Butler’s testimony “ ‘so likely influenced the jury that [Madsen] cannot be said to have had a fair trial.’ ” Id. (citation omitted). Thus, we cannot say that the trial court abused its discretion. Accordingly, we affirm the trial court’s denial of Madsen’s motion for a mistrial.

III. Necessity of Presentence Investigation Report

¶ 13 Finally, Madsen argues that the trial court erroneously interpreted Utah Code Ann. § 77-18-1(5) (Supp.2001) as giving the court discretion to deny the preparation of presentence investigation reports. We “examine the statute’s plain language, resorting to other methods of statutory interpretation only if the language is ambiguous.” State v. Barrick, 2002 UT App 120, ¶ 4, 46 P.3d 770. Neither party argues in their briefs that the statute is ambiguous, and our reading of it does not reveal ambiguity. Thus, we interpret section 77-18-1(5) according to its plain language. See id.

¶ 14 Section 77-18-l(5)(a) states:

Prior to the imposition of any sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the department or information from other sources about the defendant.

Utah Code Ann. § 77-18-1 (5)(a) (emphasis added). Use of the permissive term “may” plainly indicates that the trial court is not required to continue sentencing to obtain a presentence investigation report. Thus, the trial court did not err when it concluded it had discretion to sentence Madsen without ordering a presentence investigation report.

¶ 15 Madsen argues that use of the word “shall” in section 77-18-l(6)(a) mandates the use of a presentence investigation report. That section provides:

The department shall provide the presen-tence investigation report to the defendant’s attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review, three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department.

Id. § 77-18-l(6)(a) (emphasis added). However, nothing in the plain language of this subsection limits the discretion of the trial court. The word “shall” directs the department of corrections, not the trial court. Further, section 77-18-l(6)(a) may not be interpreted in a vacuum, but within the context of the trial court’s discretion, which the plain language of section 77-18-l(5)(a) gives it. See Utah County v. Orem City, 699 P.2d 707, 709 (Utah 1985) (“Subsections of a statute should not be construed in a vacuum but must be read as part of the statute as a whole.”). Accordingly, we affirm the trial court’s interpretation of the statute and its conclusion that it had discretion to sentence Madsen without the aid of a presentence investigation report.

CONCLUSION

¶ 16 Neither the use of leg restraints nor the courtroom security in this case was inherently prejudicial. Further, the record does not support the assertion that Officer Butler’s testimony “ ‘so likely influence[d] the jury that [Madsen] cannot be said to have had a fair trial.’ ” Decorso, 1999 UT 57 at ¶ 38, 993 P.2d 837 (citation omitted). Moreover, the trial court correctly interpreted the statute to mean that it had discretion to sentence Madsen without the aid of a presen-tence investigation report. Accordingly, we affirm.

¶ 17 WE CONCUR: RUSSELL W. BENCH and GREGORY K. ORME, Judges.

      . He only speculates in his reply brief that "[t]he trial court’s inability to see the shackles at one point during a pre-trial héaring is no guarantee that the jurors did not see the shackles.”

      . Nevertheless, Madsen argues that the shackles were inherently prejudicial because they "not only risk inflaming jurors, but also ... are uncomfortable and distracting to defendants, who have constitutional rights to effectively defend themselves and consult with counsel.” However, the inherent prejudice of shackling arises when "the practice presents an unacceptable risk of bringing into play impermissible factors that might erode the presumption of innocence.” State v. Daniels, 2002 UT 2, ¶ 20, 40 P.3d 611. The presumption of innocence is eroded by factors that influence the juiy's perceptions, not by the defendant’s discomfort. Cf. Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46, 89 L.Ed.2d 525 (1986); Moon v. Head, 285 F.3d 1301, 1317-18 (11th Cir.2002). Thus, a defendant’s discomfort or distractions do not necessarily inherently prejudice his right to a fair trial.

      . The trial court stated that it had excluded this evidence because of its lack of probative value, not its prejudicial effect. Further, it noted "that the additional prejudice to these defendants from this coming out on top of everything else this juiy's heard today is like tossing a—another ... shovel of manure in a great big cattle truck. I mean it is ... minimal, in comparison with what the rest of the things that the juiy’s heard.” For example, Officer Meyer found a missing Polaroid camera on Madsen's person, which was engraved with the words "San Juan County Jail.” Madsen became belligerent when confronted about the camera. Also, Madsen threatened to flood the top tier of the jail, that tier of the jail was later flooded, and Madsen’s toilet was found to be plugged with "various cloth articles.”

      . We note that Madsen does not challenge his sentence, only the trial court’s conclusion that it had discretion to sentence him without a presen-tence investigation report. Likewise, he does not argue, alternatively, that if the court actually had such discretion, the discretion was abused in this case.