author: WILKINS, Associate Chief Justice:

text:
    2004 UT 52
    David C. WHITNEY, an individual; Whitney Enterprises, Inc., a Minnesota corporation; and Con-Blast, Inc., a Minnesota corporation, Plaintiffs, Appellees, and Cross-Appellants, v. Larry FAULKNER, an individual; and Roberta Beverly, an individual, Defendants, Appellants, and Cross-Appellees.
    No. 20020412.
    Supreme Court of Utah.
    June 25, 2004.

      Kira M. Slawson, Salt Lake City, for plaintiffs.
    Brad C. Smith, Ogden, for defendants.
   WILKINS, Associate Chief Justice:

¶ 1 Defendant Larry Faulkner (“Faulkner”) and his wife, Renee Faulkner (“Renee”), a garnishee, appeal the trial court’s determination that Faulkner’s disclaimer of an interest in a trust was ineffective and that the interest was therefore subject to garnishment. The plaintiffs, David C. Whitney, Whitney Enterprises, Inc., and Con-Blast, Inc. (collectively, “Whitney”), who have an unsatisfied judgment against Faulkner, cross-appeal the trial court’s denial of prejudgment interest on the garnishment amount. We affirm the trial court’s ruling regarding the effectiveness of Faulkner’s disclaimer and Renee’s liability to Whitney, but reverse and remand to the trial court on the issue of Whitney’s entitlement to prejudgment interest.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Faulkner was a beneficiary of a trust created by his mother, Jennie A. Faulkner (“Jennie”), who later died. Upon Jennie’s death, Renee succeeded her as the trustee of the trust. Faulkner and Renee were residual beneficiaries of the trust. Faulkner is also a judgment debtor to Whitney. .

¶ 3 Pursuant to the terms of Jennie’s trust, the beneficiaries met shortly after her death to divide personal property held by the trust. Faulkner accepted various items from the trust, including television equipment and household items, a kiln, and an opal ring. Under a separate provision of the trust, Renee, acting as trustee, sold the home owned by the trust and prepared to distribute the proceeds among the various beneficiaries, who included Faulkner’s sisters. At that time, the cash held by the trust totaled $86,455.63. On May 4, 2001, prior to distribution of the trust’s cash, Faulkner recorded a document entitled “Renunciation of Interest,” which purports to be a disclaimer under Utah Code section 75-2-801. That same day, Renee asked the trust’s attorney to distribute its cash to the appropriate beneficiaries. Renee received $58,487.29, half of which represented Faulkner’s share of the trust’s residuary, which he purported to disclaim.

¶ 4 Whitney learned of Faulkner’s interest in the trust from Faulkner’s sisters and served Renee with a writ of garnishment aimed at collecting the trust funds Whitney believed belonged to Faulkner. The writ was served in May 2001, shortly after distribution of the trust proceeds. Whitney also obtained an order in supplemental proceedings requiring Faulkner to retain his assets until a hearing could be held. In a motion styled as an answer to the interrogatories accompanying the writ of garnishment, Renee moved to quash the writ because she believed Faulkner had disclaimed his interest in the trust proceeds. Faulkner joined in that motion. Whitney filed a reply, arguing that Faulkner’s disclaimer was ineffective.

¶ 5 Pursuant to the parties’ stipulation, on July 5, 2001, the court ordered Renee to deposit the disputed amount into a bank account pending further order of the court. The trial court ultimately denied the motion to quash and entered judgment against Renee. The trial court’s order on the motion also awarded Whitney the actual interest earned on the garnished amount while the parties awaited resolution of the motion. However, the trial court granted Whitney no further prejudgment interest.

¶ 6 The trial court’s ruling was premised primarily upon the plain language of Faulkner’s disclaimer and Faulkner’s acceptance of benefits from the trust before his disclaimer. Faulkner’s disclaimer reads: “I, Lawrence C. Faulkner, hereby renounce, relinquish, and otherwise forfeit all my right, title, interest, or claim as a beneficiary of the estate of Jennie A. Faulkner as though I had pre-deased [sic] her.” The trial court held that the disclaimer did not purport to be a partial disclaimer that covered only the cash distributions from the trust, but was facially an attempt to disclaim any and all right to proceeds from the trust. Accordingly, because section 75-2-801 bars disclaimer after one has accepted a portion of the property sought to be disclaimed, the trial court found that Faulkner’s disclaimer was ineffective and ordered Renee to pay Faulkner’s share of the proceeds of Jennie’s trust to Whitney.

¶ 7 Faulkner and Renee appeal the trial court’s denial of Renee’s motion to quash. They contest the trial court’s holding that Faulkner’s disclaimer was ineffective. On appeal, they argue that partial disclaimer is allowed under Utah law and that Faulkner’s acceptance of personal property from the trust did not bar his disclaimer of cash distributions. They argue that the trial court erred by requiring that Faulkner strictly comply with section 75-2-801 in order to effectuate a partial disclaimer. In addition to opposing Faulkner and Renee’s position, Whitney cross-appeals the trial court’s denial of its motion for prejudgment interest against Renee. According to Whitney, Renee’s failure to pay pursuant to the writ of garnishment constitutes an overdue debt on which prejudgment interest should be awarded, even in the absence of a contract or statute allowing such an award.

STANDARD OF REVIEW

¶ 8 With regard to the trial court’s evaluation of Faulkner’s attempted disclaimer, its determination is reviewed with some measure of discretion because it represents the application of principles of law to certain facts. State v. Pena, 869 P.2d 932, 937-38 (Utah 1994). Whether prejudgment interest is available to a prevailing party is generally a question of law reviewed for correctness. Lyon v. Burton, 2000 UT 19, ¶ 73, 5 P.3d 616. However, with respect to charging prejudgment interest against garnishees, the principles we recognize today give the trial court discretion. Accordingly, when we review such determinations we will defer to the trial court in the absence of an abuse of its discretion.

ANALYSIS

I. EFFECTIVENESS OF FAULKNER’S DISCLAIMER

¶ 9 Faulkner and Renee argue that we should reverse the trial court’s determination that Faulkner’s purported disclaimer was ineffective. This argument rests on the disclaimer statute’s provision for partial disclaimer of an interest in property. Utah Code Ann. § 75-2-801(1) (Supp.2003). However, the trial court correctly concluded that Faulkner failed to properly disclaim his interest in the residuary of Jennie’s trust.

¶ 10 The document executed by Faulkner as a disclaimer provides that he “renounce[s], relinquish[es], and otherwise forfeit[s] all ... right, title, interest, or claim as a beneficiary of the estate of Jennie A. Faulkner.” (Emphasis added.) The document makes no mention of Faulkner’s acceptance of any property from the trust. Although the disclaimer statute allows for the partial disclaimer of an interest in a trust, the plain language of the statute requires that a disclaimer “describe the property or interest disclaimed” and “declare the disclaimer and extent thereof.” Id. § 75-2-801(3)(a), (b).

¶ 11 Faulkner’s disclaimer is not facially defective; rather, it describes the interest to be disclaimed as Faulkner’s interest in Jennie’s trust and, through the use of the word “all,” declares the extent of that purported disclaimer as total. Thus, if the document is taken alone, the disclaimer would be valid. However, elsewhere in the statute is a prohibition that voids Faulkner’s attempted disclaimer.

¶ 12 “The right to disclaim property or an interest therein is barred by an acceptance of the property or interest or a benefit under it.” Id. § 75 — 2—801(5)(c). Faulkner accepted various items of personal property from the trust. Having accepted property representing a portion of the interest he purported to completely disclaim, Faulkner is legally barred from disclaiming that interest. Had he not accepted any property from the trust, or had he used language of partial disclaimer as he now urges he intended, Faulkner’s disclaimer -would have been effective. Although Faulkner contends that “substantial compliance” with the partial disclaimer provisions should be sufficient to shield the residual portion of Jennie’s trust from his creditors, the language and policy of the statute do not support this argument.

¶ 13 Far from being a departure from the requirement that we liberally construe statutes “with a view to effect the objects of the statutes and to promote justice,” id. § 68-3-2 (2000), our recognition of the ineffectiveness of Faulkner’s disclaimer is based on the plain language of the statute and the language of his purported disclaimer. As noted above, the statute requires a description of the disclaimer, a declaration of the extent of the disclaimer, and the acceptance of no benefit from the interest.sought to be disclaimed. Faulkner strictly complied with the first two. of -these requirements by describing the interest to be disclaimed and the extent of the disclaimer. But, by accepting property from the trust, he failed to comply with the third provision. Thus, Faulkner’s compliance with the statute does not depend on whether he substantially complied with the partial disclaimer provisions, but whether his purported complete disclaimer will be given effect. Were we to hold that partial disclaimer may be accomplished by using language completely disclaiming an interest in a trust, we would virtually eviscerate the requirement that a disclaimant declare the extent of his or her disclaimer. Statutory provisions are not to be interpreted in a manner rendering them devoid of effect; rather, we seek to give all provisions of a statute some effect. ExxonMobil Corp. v. Utah State Tax Comm’n, 2003 UT 53, ¶ 14, 86 P.3d 706. Here, to give effect to the partial disclaimer provisions requires that the law expect more of disclaimants than Faulkner suggests. Indeed, insisting that disclaimants plainly identify what exactly is to be disclaimed fulfills not only the statutory language, but the policy behind the disclaimer statute.

¶ 14 “[T]he usual effect of the disclaimer statute is to avoid the imposition of transfer taxes and to thwart creditors.” In re Estate of Kirk, 591 N.W.2d 630, 634 (Iowa 1999) (citing In re Estate of Lamoureux, 412 N.W.2d 628, 630 (Iowa 1987)). While this is a permitted use of the disclaimer statute, one who wishes to take advantage of the statute’s provisions to avoid the claims of others must comply with its terms. As noted above, Faulkner’s substantial compliance argument simply ignores both the language of the statute and of the document he executed. He did not comply with the statutory requirements for a partial disclaimer, and cannot now avail himself of its protections. The disclaimer was ineffective as a total disclaimer because he accepted property from the trust, and as a partial disclaimer because it did not accurately describe the interest to be disclaimed. Therefore, “Whitney is entitled to collect Faulkner’s portion of Jennie’s trust in partial satisfaction of its judgment.

II. PREJUDGMENT INTEREST AGAINST GARNISHEES

¶ 15 On cross-appeal, Whitney argues that the trial court improperly failed to award prejudgment interest against Renee. Whitney asserts that a garnishee who unlawfully withholds funds properly subject to garnishment is liable to the garnishor for prejudgment interest. Renee counters that requiring her to pay prejudgment interest allows Whitney to collect interest upon interest by accruing post-judgment interest on the Faulkner judgment while simultaneously accruing prejudgment interest on the garnishment amount. We hold that although garnishors are not always entitled to prejudgment interest on garnishment amounts, it may be awarded in certain circumstances at the discretion of the trial court and does not represent interest upon interest for the garnishor.

¶ 16 In support of his argument for prejudgment interest, Whitney asserts that Utah Code section 15-1-1 and the case of Wasatch Mining Co. v. Crescent Mining Co., 7 Utah 8, 24 P. 586 (Utah 1890), entitle garnishors to prejudgment interest against garnishees who wrongfully withhold garnished funds. However, neither these authorities nor the policy underlying garnishment proceedings supports such a categorical rule.

¶ 17 Section 15-1-1 of the Utah Code provides that parties to a contract may agree to “any rate of interest” and that the absence of a contractually defined rate will result in imposition of the statutory rate of ten percent. Utah Code Ann. § 15-1-1 (2001). However, section 15-1-1 does not provide for the payment of interest outside of the contract setting, although Wasatch Mining does. Despite the age of the opinion, the principle announced in Wasatch Mining remains correct; interest on overdue debts is allowed, even in the absence of a contract or statute providing for it. 24 P. at 587; see also Bd. of Educ. v. Salt Lake County, 659 P.2d 1030, 1036 (Utah 1983) (citing Wasatch Mining, 24 P. at 587). Thus, even if the statute does not entitle Whitney to interest because the parties had no contract, “Whitney asserts that Wasatch Mining requires an award of prejudgment interest. However, a garnishee’s obligations under rule 64D of the Utah Rules of Civil Procedure are simply not the same as those incurred by the type of debtor contemplated by the rule of Wasatch Mining. Any recovery of prejudgment interest from Renee must, therefore, be premised upon some other authority. We have not yet had the opportunity to elucidate the principles governing the award of prejudgment interest to garnishors. We take this opportunity to do so.

¶ 18 Garnishment allows a judgment creditor to satisfy a judgment by reaching property owed to the judgment debtor by a third party. Utah R. Civ. P. 64D(a)(I), (iii); see also 38 C.J.S. Garnishment § 2 (1996). Through garnishment proceedings, the garnishee’s debt to the judgment debtor becomes due to the judgment creditor. In this scenario, the garnishee is typically a neutral party to the garnishment proceedings, such as a bank, and merely holds the subject property until a court establishes whether the judgment creditor is entitled to it. However, sometimes a garnishee departs from a neutral position to assert its own claim to the property, which may be proper. See, e.g., Utah R. Civ. P. 64D(d)(ii)(4) (requiring garnishee’s answers to interrogatories to identify any setoff claimed by the garnishee). Rule 64D of the Utah Rules of Civil Procedure establishes a process for resolving competing claims to the property made by the judgment creditor, judgment debtor, and garnishee. Id. 64D(h) to (i). Ordinarily, when a garnishee departs from a neutral position to assert its own competing claim to the property, its availment of rule 64D’s process will not subject it to a claim for prejudgment interest. Some other departures from neutrality, however, are not proper.

¶ 19 Although rule 64D is designed to facilitate collection and should not be used to place undue burdens or risks on garnishees, a trial court has the discretion to award prejudgment interest when a garnishee becomes unduly partisan, or otherwise obstructs the process. A garnishee’s improper conduct, including its collusive support of either the judgment creditor or judgment debtor’s position, may lead a trial court to assess prejudgment interest against it. Additionally, “[i]f the garnishee ... interposes obstacles to plaintiffs recovery against him by filing dilatory [pleadings], or by making difficulties and himself producing unreasonable delay, he will be charged with interest.” 38 C.J.S. Garnishment § 197 (1996) (citations omitted). Contrary to Faulkner’s view, such an award of prejudgment interest does not represent a double recovery of interest. Instead of the judgment creditor obtaining interest on both the underlying judgment and the garnishment amount during the pendency of the garnishment proceedings, the award of prejudgment interest offsets the interest due on the underlying judgment. Thus, the interest awarded in the garnishment proceedings is retroactively applied to the underlying judgment to reduce the amount owed. In short, the award of prejudgment interest in garnishment matters may be proper and does not constitute double recovery.

¶ 20 In this case, the trial court denied Whitney’s motion for the assessment of prejudgment interest against Renee, but the record is insufficient to evaluate its decision in light of the principles here outlined. The trial court’s decision was made in telephone conference and there is no indication of what standard the trial court utilized when it denied the motion. Because there are circumstances where an assessment of prejudgment interest against a garnishee is appropriate and there is no evidence in the record suggesting that the trial court considered those circumstances, we reverse the denial of Whitney’s motion and remand the ease to the trial court for reconsideration. On reconsideration, the court should be mindful that, pursuant to its July 5, 2001 order, the contested funds were maintained in an interest-bearing bank account pending resolution of this matter. The accrued interest on that account was awarded to Whitney and therefore must be considered by the trial court in determining the propriety of allowing additional interest for that same period of time. We express no opinion about the outcome of the motion upon reconsideration, which is left to the sound discretion of the trial court.

CONCLUSION

¶21 We affirm the trial court’s decision that Faulkner’s purported disclaimer was ineffective to disclaim his interest in the cash distributions from Jennie’s trust. We therefore affirm its judgment against Renee for the amount of Faulkner’s share of the proceeds of Jennie’s trust. We reverse the trial court’s denial of Whitney’s motion for prejudgment interest and remand that issue to the trial court for further consideration in light of this opinion. Affirmed in part and reversed in part.

¶ 22 Chief Justice DURHAM, Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice WILKINS’ opinion.

      . Although Faulkner and Renee challenge the trial court's order on other grounds as well, our resolution of the points addressed in this opinion dispenses with our need to evaluate those arguments.

      . Despite having no liability for prejudgment interest, a garnishee may still be liable to pay accrued interest where it is otherwise due. For example, a garnishee bank would be required to pay the regular, accrued interest on a deposit account in which property was held pending resolution of the garnishment proceedings.


source: Caselaw Access Project

author: DURHAM, Chief Justice:

license: Public Domain

text:
    2004 UT 63
    STATE of Utah, Plaintiff and Petitioner, v. Wallace Wayne DEAN, Defendant and Respondent.
    No. 20020952.
    Supreme Court of Utah.
    July 27, 2004.

      Mark L. Shurtleff, Att’y Gen., Jeanne B. Inouye, Asst. Att’y Gen., Salt Lake City, David E. Doxey, Cedar City, for petitioner.
    J. Bryan Jackson, Cedar City, for respondent.
   AMENDED OPINION

On Certiorari to the Utah Court of Appeals

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Wallace Wayne Dean pled guilty to two counts of child abuse and one count of assault. Dean later sought to withdraw his plea, claiming the trial judge had not strictly complied with Utah Rule of Criminal Procedure 11(e). The trial court denied Dean’s motion. Dean appealed and the court of appeals reversed. The case is now before us on a writ of certiorari. We reverse.

BACKGROUND

¶ 2 On March 8, 2000, Dean pled guilty to two counts of child abuse and one count of assault. These charges stemmed from incidents of abuse and assault involving Dean’s two children and his now deceased wife. In exchange for Dean’s guilty plea, other pending charges were dismissed.

¶ 3 In connection with his plea, Dean executed a plea statement detailing the constitutional rights he was waiving. The plea statement declared, in relevant part, as follows:

I, Wallace Wayne Dean ... under oath, hereby acknowledge that I have entered a plea of “guilty” to the offense(s) of Child Abuse (Count I), ... Child Abuse (Count III), ... and Assault (Count V).... I further understand the charge[s] to which this plea of “guilty” is entered ... and that I am entering such a plea voluntarily and of my own free will, after conferring with my Attorney ... and with a knowledge and understanding of the following facts:
I know that I have constitutional rights under the Constitutions of Utah and the United States to plead not guilty and to have a jury trial upon the charge[s] to which I have entered a plea of guilty, or to a trial by the Court should I elect to waive a trial by jury. I know I have a right to be represented by counsel and that I am in fact represented by ... my attorney.
I know that if I wish to have a trial in Court upon the charge[s], I have a right to confront the witnesses against me.... I also know that I have the right to have witnesses subpoenaed by the State at its expense to testify in Court on my behalf and that I could, if I elected to do so, testify in Court on my own behalf, and that if I choose not to do so, the jury can and will be told that this may not be held against me if I choose to have the jury so instructed.
I know that if I were to have a trial that the State must prove each and every element of the crime[s] charged to the satisfaction of the Court or jury beyond a reasonable doubt; ... and that any verdict by a jury ... must be by a unanimous agreement of all jurors.
I know that ... I have a right against self-incrimination.
I know that if I wish to contest the charge[s] against me, I need only plead “not guilty” and the matter will be set for trial.... I know and understand that by entering a plea of “guilty,” I am waiving my constitutional rights ... and that I am, in fact, fully incriminating myself by admitting I am guilty of the crime[s] to which my plea of “guilty” is entered.

¶ 4 Dean signed the plea statement and initialed each paragraph. The following oral exchange took place between Dean and the court at the time he signed the statement:

The Court: All right. So are these your initials by each of the 16 paragraphs?
Mr. Dean: Yes, sir.
The Court: Did you place them there after you first read each and all paragraphs? Mr. Dean: Yes, sir.
The Court: Are you in agreement with what your attorney just said regarding what’s written here, handwriting?
Mr. Dean: Yes, sir.
The Court: Okay. What is your plea to Count I child abuse, sex abuse?
Mr. Dean: Guilty plea.
The Court: Count III, child abuse, a Class A second-degree misdemeanor?
Mr. Dean: Guilty plea.
The Court: Count V, assault, a Class B
misdemeanor?
Mr. Dean: Guilty.

¶ 5 Approximately one month later, on April 10, 2000, Dean filed a motion to withdraw his guilty plea, stating that the plea was not taken pursuant to rule 11 of the Utah Rules of Criminal Procedure. Dean did not specify the basis for the violation. Instead, he merely alleged that there were “two significant departures” from due process and equal protection, without further explanation.

¶ 6 The next day, the court denied Dean’s motion to withdraw and imposed sentence, concluding that Dean had failed to show good cause for withdrawal of his guilty plea. Dean appealed and argued for the first time before the court of appeals that the trial court committed plain error by not advising him of his right to a “speedy public trial before an impartial jury.” (Emphasis added.) The court of appeals reversed the trial court’s denial of Dean’s motion to withdraw and vacated his conviction, concluding that failure to include the words “speedy” and “impartial” as part of the plea colloquy constituted plain error.

STANDARD OF REVIEW

¶7 On certiorari, we review the court of appeals’ decision for correctness. Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460. The correctness of the court of appeals’ decision turns on whether that court correctly reviewed the trial court’s decision under the appropriate standard of review. Newspaper Agency Corp. v. Auditing Div., 938 P.2d 266, 267 (Utah 1997). Whether the trial court strictly complied with rule 11 is a question of law, reviewed for correctness. State v. Benvenuto, 1999 UT 60, ¶ 10, 983 P.2d 556.

ANALYSIS

I. RULE 11

¶ 8 Dean argues that he is entitled to withdraw his guilty plea because the trial court failed to strictly comply with rule 11 of the Utah Rules of Criminal Procedure. The State counters that Dean’s motion to withdraw was properly denied by the trial court. Moreover, the State argues that appellate review of a trial court’s denial of a defendant’s motion to withdraw is limited to the denial of the motion itself. Therefore, the State asserts that we must limit our review to the denial of Dean’s motion to withdraw and should not consider the record of the plea proceedings, the plea colloquy, or the plea statement.

¶ 9 Utah Rule of Criminal Procedure 11(e) states, in relevant part, that a court may not accept a guilty plea until the court has found that “the defendant knows of ... the right to a speedy public trial before an impartial jury.” Utah R.Crim. P. 11(e). The purpose of rule 11 is to ensure that defendants know their rights and understand the basic consequences of their decision to plead guilty. State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242. However, we have also declared that this purpose “should not be overshadowed or undermined by formalistic ritual.” Id. Moreover, while in State v. Thurman, 911 P.2d 371, 372 (Utah 1996), we described the trial court’s duty in this regard as a duty of “strict compliance,” we have also declared that strict compliance “ ‘does not mandate a particular script or rote recitation of the rights listed.’ ” State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203 (quoting Visser, 2000 UT 88 at ¶ 11, 22 P.3d 1242).

¶ 10 Plea affidavits or plea statements are properly used and incorporated into the record when the trial court determines that the defendant has read the affidavit or statement, understands its contents, and acknowledges those contents. State v. Maguire, 830 P.2d 216, 217 (Utah 1991) (per curiam). Proper incorporation of plea affidavits can save the court time, eliminate some of the monotony of rote recitation, and allow a more focused inquiry into the facts of the offense and whether the plea is knowingly and voluntarily entered. Maguire, 830 P.2d at 217-18; Utah R.Crim. P. 11 advisory committee note.

¶ 11 At the time defendant filed his motion to withdraw, a guilty plea could only be withdrawn upon good cause shown and with leave of the court. Utah Code Ann. § 77-13-6(2)(a) (1999). Withdrawal “is a privilege, not a right, that is left to the trial court’s sound discretion.” State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987); State v. Brocksmith, 888 P.2d 703, 704 (Utah Ct.App.1994). Therefore, appellate courts will not disturb a trial court’s determination that a defendant has failed to show good cause unless it is clear that the trial court has abused its discretion. State v. Gamblin, 2000 UT 44, ¶ 9, 1 P.3d 1108.

¶ 12 When reviewing the trial court’s denial of a defendant’s motion to withdraw a guilty plea, the reviewing court may consider the record of the plea proceedings, including the plea colloquy and plea affidavit or statement. Visser, 2000 UT 88 at ¶¶ 4-5, 12, 22 P.3d 1242; Maguire, 830 P.2d at 217 (stating that compliance may be demonstrated on appeal by reference to the record of the plea proceedings). Thus, review of a trial court’s denial of a motion to withdraw is not limited to the denial of the motion itself. The precedent in both the Utah and federal courts demonstrates that courts consistently consider the plea colloquy in reviewing the denial of a defendant’s motion to withdraw a guilty plea. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Visser, 2000 UT 88 at ¶ 4, 22 P.3d 1242. Moreover, appellate review of the trial court’s denial of a defendant’s motion to withdraw may also consider the facts and circumstances in which the plea was taken. See Visser, 2000 UT 88 at ¶ 13, 22 P.3d 1242 (stating the trial court’s colloquy, “in light of the mid-trial context of the plea,” provided an adequate basis to conclude that the trial court had complied with rule 11).

¶ 13 Finally, in general, appellate courts will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. A proper objection “puts the judge on notice of the asserted error and allows the opportunity for correction at that time in the course of the proceeding.” Broberg v. Hess, 782 P.2d 198, 201 (Utah Ct.App.1989). Moreover, the issue must be “sufficiently raised to a ‘level of consciousness’ before the trial court and must be supported by evidence or relevant legal authority.” State v. Schultz, 2002 UT App 366, ¶ 19, 58 P.3d 879 (internal quotations and citations omitted). Failure to raise and argue an issue and present pertinent evidence in that forum denies the trial court “ ‘the opportunity to make any findings of fact or conclusions of law”’ concerning the claimed error. State v. Brown, 856 P.2d 358, 360 (quoting LeBaron & Assoc. v. Rebel Enter., 823 P.2d 479, 483 n. 6 (Utah Ct.App.1991)).

¶ 14 In this case, Dean’s argument that the trial court failed to comply with rule 11 was not properly preserved below. Dean’s motion to withdraw and the asserted grounds therefor failed to put the trial court on notice of the alleged error. Dean did not sufficiently bring the issue to the court’s attention in his motion to withdraw, nor was it supported by evidence or relevant legal authority. Instead, Dean vaguely asserted that there were “two significant departures” from due process and equal protection. He did not indicate what those departures were, denying the trial court the opportunity to make findings of fact and conclusions of law. Therefore, we can only address this argument under a plain error analysis. In conducting this analysis, we will consider the record of the plea proceedings, the plea statement, and the plea colloquy.

II. PLAIN ERROR

¶ 15 To demonstrate plain error, a defendant must establish that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” Holgate, 2000 UT 74 at ¶ 13, 10 P.3d 346 (citing State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993)). “If any one of these requirements is not met, plain error is not established.” Dunn, 850 P.2d at 1209 (citations omitted).

A. Obvious Error

¶ 16 We turn first to the element of obviousness. To establish that the error should have been obvious to the trial court, Dean must show that the law governing the error was clear at the time the alleged error was made. See State v. Eldredge, 773 P.2d 29, 35-36 (Utah 1989) (rejecting a claim of plain error where a dispositive appellate case had not yet been decided); see also State v. Ross, 951 P.2d 236, 239 (Utah Ct.App.1997) (stating “error is not plain where there is no settled appellate law to guide the trial court”).

¶ 17 In this context and on these facts, we find that any error committed by the trial court was not obvious at the time the court denied Dean’s motion to withdraw. First, we disagree with the court of appeals’ conclusion that the trial court’s alleged error should have been obvious in light of the decisions in State v. Tamawiecki, 2000 UT App 186, 5 P.3d 1222, and State v. Hittle, 2002 UT App 134, 47 P.3d 101. As the dissent in the court of appeals’ decision pointed out, both of these cases were decided after Dean pled guilty and made his motion to withdraw. Dean entered his guilty plea on March 8, 2000, and sought its withdrawal on April 10, 2000; however, the Tamawiecki and Hittle opinions were not issued until June 15, 2000, and April 25, 2002, respectively. Therefore, neither decision was available to guide the trial court at the time of Dean’s plea or when it considered his motion to withdraw.

¶ 18 Second, the law in this area was not sufficiently clear or plainly settled. This was true with respect to both Utah and federal case law. In Visser, we held that the trial court strictly complied with rule 11 even though it did not specifically inform the defendant of his “right to a speedy public trial before an impartial jury.” 2000 UT 88 at ¶ 13, 22 P.3d 1242. Taking into account the context of the plea, we held that because the trial court’s colloquy provided an adequate basis to conclude that the rule 11 requirements had been fulfilled, the court’s omission of the words “speedy” and “impartial” did not justify withdrawal of the defendant’s plea. Id.

¶ 19 In addition, federal law in this area was not well-settled, and some federal courts have held that exclusion of a specific word in the plea colloquy does not always constitute error sufficient to justify withdrawal. See United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.1987); United States v. Burnett, 671 F.2d 709, 711-12 (2d Cir.1982) (failure to inform the defendant of the right to confront and cross-examine witnesses against him was not proper justification for withdrawal of defendant’s guilty plea).

¶20 The defendant in Rubalcaba, for example, was advised that by pleading guilty he was waiving his “right to trial.” Id. at 493 (emphasis added). However, rule 11 of the Federal Rules of Criminal Procedure requires that the court “inform the defendant of, and determine that the defendant understands ... the right to a jury trial.” Fed. R.Crim.P. 11(b)(1) (emphasis added). The defendant argued that because the trial court failed to include the word “jury” when describing his rule 11 rights, he should be permitted to withdraw his guilty plea. Ru-balcaba, 811 F.2d at 493. The appellate court disagreed and found the trial court’s statement that the defendant was waiving his right to “trial” rather than “jury trial” was not a fair and just reason to permit the defendant’s withdrawal of his plea. Id. at 493.

¶21 As Visser and Rtibalcaba demonstrate, the law in this area was not plainly settled so as to have adequately guided the trial court at the time Dean’s plea was entered. It was not clear that the omission of particular words during plea colloquies constituted obvious error and justification for a defendant to withdraw his or her plea. We therefore hold that the trial court’s statement that Dean had the right to a “trial by jury” rather than “a speedy public trial before an impartial jury” was not obvious error.

B. Harmful Error

¶22 Under the plain error doctrine, a defendant must not only demonstrate that the error was obvious, but also that it was harmful or “of such a magnitude that there is a reasonable likelihood of a more favorable outcome for the defendant.” State v. Evans, 2001 UT 22, ¶ 16, 20 P.3d 888; Holgate, 2000 UT 74 at ¶ 13, 10 P.3d 346. This harmfulness test is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel. State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778. “Where a defendant challenges a guilty plea on grounds of ineffective assistance of counsel, he or she must show a ‘reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.’ ” Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Therefore, counsel’s deficient performance must have “affected the outcome of the plea process.” Id. Similarly, establishing harm in the present context generally requires the defendant’s assertion that “but for” the alleged error, he or she would not have pled guilty. See State v. Martinez, 2001 UT 12, ¶ 17, 26 P.3d 203 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶23 In the instant case, Dean has never asserted that the trial court’s alleged error prejudiced him in any way. Dean argues that “[s]ince a right to a speedy public trial before an impartial jury is a substantial constitutional right, the need to make a separate finding of harm is unnecessary and presumed to be harmful if the trial court fails to inform a defendant accordingly.” We disagree, and hold that Dean was required to show that any error by the court actually “affected the outcome of the plea process.” Parsons, 871 P.2d at 525. Dean did not argue that but for the court’s omission of the words “speedy” and “impartial” he would not have pled guilty and would have gone to trial. Therefore, he has failed to satisfy the third element of plain error analysis. See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (stating where harm is not shown, plain error is not established).

CONCLUSION

¶ 24 Having concluded that Dean failed to establish either that any error by the trial court was obvious or that he was harmed by any such error, we decline to find plain error. We reverse the court of appeals and affirm the trial court’s denial of Dean’s motion to withdraw his guilty plea.

¶ 25 Associate Chief Justice WILKINS, Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Chief Justice DURHAM’S opinion.

      . See State v. Dean, 2002 UT App 323, 57 P.3d 1106, for a more detailed description of the facts.

      . Our holding is not intended to undermine our consistent emphasis on compliance with rule 11 in all plea proceedings. See State v. Thurman, 911 P.2d 371, 372-73 (Utah 1996); State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987). The plea statement used in this case requires review and the words "speedy” and "impartial” should be added to remove any possibility of future challenges resembling the one currently before us. Likewise, trial judges should be attentive to the nuances of rule 11 ’s language as they use and rely on plea statements. The Statement of Defendant in Support of Guilty Plea, found as Form 1 in the Appendix of Forms to the Utah Rules of Criminal Procedure, will "[w]hen properly filled out” comprise a "statement for purposes of strict compliance with Rule 11[.]” Utah R.Crim. P., Appendix of Forms (2003).


author: ORME, Judge:

text:
    2004 UT App 210
    STATE of Utah, Plaintiff and Appellee, v. Gordon R. KING, Defendant and Appellant.
    No. 20030069-CA.
    Court of Appeals of Utah.
    June 24, 2004.

      Elizabeth Hunt, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., JACKSON and ORME, JJ.
   OPINION

ORME, Judge:

¶ 1 Gordon R. King appeals his conviction of attempted forcible sexual abuse of a child in violation of Utah Code Ann. § 76-5^04 (1999). Because we hold that the trial court failed to fully satisfy its responsibility to detect, probe, and eliminate juror bias during the jury selection process, we reverse King’s conviction and remand for a new trial.

BACKGROUND

¶ 2 King was charged with sexual abuse of a child, in violation of Utah Code Ann. § 76-5-404.1 (1999). After a preliminary hearing, King was bound over for trial. At trial, once the prospective jurors were sworn, the trial court explained that it would be asking them questions in order “to get a fair and impartial jury.” During voir dire, the trial court read the Information to the prospective jurors, “to see if [the jurors] have any familiarity with the case or any strong feelings about the case.”

¶ 3 After reading the Information, the court asked whether any of the prospective jurors had “formed an opinion about this case.” Prospective Juror A raised her hand, indicating that she had formed an opinion, and the court then asked if there was “anyone who because of the nature of the ease believes they would be unable to be fair and impartial.” When prospective Jurors A, B, C, D and E all raised their hands, the court explained that although “[t]he nature of the alleged crime is one that ... none of us look upon in favor[,] ... the defendant in this case is not convicted[ and t]he State has the burden of proving him guilty beyond a reasonable doubt.” The court then asked if any of the prospective jurors were “of the opinion that, because of the mere nature of the case, [they] couldn’t listen and be fair,” to which Juror A again raised her hand.

¶ 4 Juror A indicated that she had formed an opinion and would be unable to be impartial and explained that she was previously “a protective services intake worker for [the] Division of Family Services.” When asked by the court whether she had found that sexual abuse cases were sometimes founded and sometimes unfounded, she answered in the negative, much to the surprise of the court. The court was quick to explain to the other potential jurors that, in fact, “[s]ome of those cases are founded, some are unfounded.” Juror A was not questioned further in the presence of the other prospective jurors but later told the judge in private that “children don’t lie about sexual abuse.”

¶ 5 The court then followed up with additional questions to prospective Jurors B, C, D, and E, “who previously indicated that they might have some difficulty with the nature of the case[ and] being fair,” to determine if they could be “fair and impartial.” In the course of questioning them, it became apparent that the affirmative responses of Jurors C and D were prompted by a previous personal or family situation involving sexual abuse. The court then told all of the prospective jurors that it would speak in private to those who had “some personal matters that they want to discuss.” The court identified Jurors A, C, and D as three'such prospective jurors, and asked whether “there [was] anyone else who either has been the victim of abuse or has had a family member or a close personal friend who has been the victim of abuse.” In response to this question, “a number of other hands” were raised, and prospective Jurors F, G, H, I, J, and K were identified for the record. Then the court asked if any of those six were “of the opinion that [their experience or history regarding abuse] would interfere with [their] ability to be fair and impartial.” Prospective Juror G raised her hand, and she was subsequently excused for cause.

¶ 6 Thus, a total of eleven prospective jurors — over one third of the pool of prospective jurors — indicated that either they, a family member, or a friend had been the victim of sexual abuse, and/or that they would have some difficulty being fair and impartial. The trial court then spoke in private to nine of those eleven jurors. The court spoke to each of the five prospective jurors — Jurors A, B, C, D, and E — who originally indicated that because of the nature of the case, they would be unable to be fair and impartial. Four of those five were removed for cause, and none of them ultimately served on the jury panel. However, the court only spoke to four of the six prospective jurors— Jurors G, H, J, and K — who indicated that they “ha[ve] been the victim of abuse or ha[ve] had a family member or a close personal friend who has been the victim of abuse.” Of those four, Jurors G and J had each been the victim of sexual abuse and were excused for cause. Juror H stated that his wife had been abused “when she was a child,” and although he attested to his ability to remain impartial, he was evidently removed by the State with a peremptory strike. Juror K indicated that her cousin had accused her uncle of sexual assault, and although she was not removed for cause, she did not ultimately serve on the jury.

¶ 7 Thus, for one reason or another, none of the prospective jurors that the trial judge spoke to about their ability to be impartial notwithstanding the nature of the case, ultimately served on the jury. However, two of the jurors that eventually served on the panel that found King guilty were not inquired of by the trial court even though they had indicated that they, a family member, or a friend had been the victim of abuse. From all that appears in the record, Jurors F and I were not questioned, unlike the others similarly situated, as to the circumstances of their experience with sexual abuse, or probed as to its impact on their ability to be fair and impartial.

¶ 8 King now appeals his conviction and claims that those two unquestioned jurors were presumptively biased, entitling him to a new trial due to the court’s failure to investigate and eliminate juror bias through voir dire.

ISSUE AND STANDARD OF REVIEW

¶ 9 King argues that the trial court did not fulfill its responsibility to investigate and eliminate potential juror bias, which surfaced during voir dire. He contends that Jurors F and I, who indicated that they either had been a victim of abuse, or had a family member or a close personal friend who had been abused, were presumptively biased, and that their service on the panel denied him the right to trial by an impartial jury. Although the State cannot account for why the two jurors went unquestioned, nor even theorize a logical reason for inquiring of only four out of six prospective jurors who had answered similarly, the State’s position is that bias cannot be presumed because the record does not firmly establish that the jurors in question had themselves been victims of sexual abuse and that King therefore cannot demonstrate any prejudicial error.

¶ 10 “ “We review challenges to the trial court’s management of jury voir dire under an abuse of discretion standard. Generally, the trial court is afforded broad discretion in conducting voir dire, “but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors.” ’ ” Depew v. Sullivan, 2003 UT App 152,¶ 10, 71 P.3d 601 (citations omitted), cert. denied, 77 P.3d 338 (Utah 2003). “ ‘When comments are made which facially question a prospective juror’s impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted.’ ” State v. Woolley, 810 P.2d 440, 443 (Utah Ct.App.) (quoting State v. Cobb, 774 P.2d 1123, 1126 (Utah 1989)), cert. denied, 826 P.2d 651 (Utah 1991).

THE RIGHT TO AN IMPARTIAL JURY

¶ 11 “Article I, section 12 of the Utah Constitution and the sixth amendment to the United States Constitution guarantee a criminal defendant the right to a trial by an impartial jury.” State v. Woolley, 810 P.2d 440, 443 (Utah Ct.App.), cert. denied, 826 P.2d 651 (Utah 1991). See State v. Bishop, 753 P.2d 439, 448 (Utah 1988). “The Due Process Clause likewise guarantees a criminal defendant’s right to an impartial jury.” Mu’Min v. Virginia, 500 U.S. 415, 439 n. 1, 111 S.Ct. 1899, 1912 n. 1, 114 L.Ed.2d 493 (1991) (Marshall, J., dissenting). See Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 1020 n. 6, 47 L.Ed.2d 258 (1976). Further, Utah Code Ann. § 77 — 1—6(l)(f) (2003) affords defendants in criminal prosecutions the right “[t]o a speedy public trial by an impartial jury.” Since “[j]uror impartiality is a mental attitude of appropriate indifference,” Woolley, 810 P.2d at 443 (internal quotations and citation omitted), adequate voir dire is necessary to determine each juror’s mental attitudes, whether derived from relevant past experiences or otherwise, in order to ensure that a defendant receives an impartial jury.

¶ 12 “The purpose of voir dire of a jury panel is ‘to provide a tool for counsel and the court to carefully and skillfully determine, by inquiry, whether biases and prejudices, latent as well as acknowledged, will interfere with a fair trial if a particular juror serves in it.’ ” Salt Lake City v. Tuero, 745 P.2d 1281, 1283 (Utah Ct.App.1987) (quoting State v. Ball, 685 P.2d 1055, 1058 (Utah 1984)). “Voir dire examination serves the dual purposes of enabling the court to select an impartial jury4 and assisting counsel in exercising peremptory challenges.” Mu’Min, 500 U.S. at 431, 111 S.Ct. at 1908. Thus, “[a] challenge to an individual juror may be either peremptory or for cause.” Utah R.Crim. P. 18(c)(2). If the prospective juror exhibits “strong and deep impressions,” State v. Wach, 2001 UT 35, ¶ 41, 24 P.3d 948 (internal quotations and citations omitted), which “reasonably lead the [trial] court to conclude the juror is not likely to act impartially,” Utah R.Crim. P. 18(e)(14), the juror should be excused for cause in order to effectuate federal and state law, which guarantee a defendant the right to an impartial jury.

¶ 13 Because a juror may appear to have questionable attitudes, which do not rise to the level of unconstitutional partiality, “each side is entitled to four peremptory challenges” in noncapital felony cases, and “no reason need be given” for their exercise. Utah R.Crim. P. 18(d). The Utah Supreme Court has instructed that in order to effectuate the dual purposes of voir dire, “trial courts can and should conduct voir dire proceedings in a way which not only meets constitutional requirements, but also enables litigants and their counsel to intelligently exercise peremptory challenges ... to eliminate bias and prejudice from the trial proceedings.” State v. James, 819 P.2d 781, 798 (Utah 1991).

¶ 14 “Once a juror’s impartiality has been put in doubt, a trial judge must investigate by further questions to determine if the juror has merely ‘light impressions’ or impressions which are ‘strong and deep’ and which will affect the juror’s impartiality.” Woolley, 810 P.2d at 443 (quoting State v. Julian, 771 P.2d 1061, 1064 (Utah 1989)) (emphasis added). “Light impressions” are those dispositions or preconceived notions that “leave the mind open to a fair consideration of th[e] testimony”; in contrast, “strong and deep impressions ... will close the mind against the testimony that may be offered in opposition to them.” Id. (internal quotations and citations omitted).

¶ 15 Once some indication of prejudice arises, the trial court must question the juror to determine where the juror is situated on the partiality continuum—with light impressions at one end, and strong and deep impressions at the other.

The Utah Supreme Court has consistently emphasized that “it is [the trial judge’s] duty to see that the constitutional right of an accused to an impartial jury is safeguarded,” State v. Dixon, 560 P.2d 318, 319-20 (Utah 1977), and has reversed criminal convictions based solely on the appearance that such right may have been jeopardized.

Woolley, 810 P.2d at 442 (alteration in original) (footnote omitted).

ANALYSIS

¶ 16 The issues in this case are whether the two jurors in question put their impartiality in doubt when they indicated that either they, a family member, or a friend had been the victim of abuse, and if so, whether the trial court’s failure to elicit further information that would have illuminated the jurors’ frame of mind jeopardized Defendant’s right to an impartial jury. The State counters Defendant’s affirmative answer to both of these questions by pointing out that the record does not conclusively establish that the jurors in question were actually biased and that Defendant neither attempted to have the jurors removed for cause nor used a peremptory strike.

¶ 17 It seems difficult to suggest the jurors’s impartiality was not put in doubt given the trial court’s care to inquire carefully of each of the several other prospective jurors who had similarly responded. This impression is confirmed when one learns, as previously noted, that all nine other prospective jurors similarly responding did not serve on the jury. Indeed, the majority of these nine were excused for cause.

¶ 18 We cannot be certain of where on the partiality spectrum the two jurors would have been located. Defendant would have us presume that each juror recently had a parallel experience to the one charged in the instant qase, thus establishing irrefutable bias. The State would locate the jurors at the opposite end of the spectrum and have us assume that each juror’s former roommate merely had a distant relative who had a dissimilar experience with abuse a long time ago, in a galaxy far away. However, it is unnecessary to speculate as to the degree of partiality each of the two jurors might have possessed because it is clear that the jurors’ responses “raised a facial question as to [their] impartiality, thus requiring further probing by the trial judge.” State v. Woolley, 810 P.2d 440, 444 (Utah Ct.App.1991).

¶ 19 The question the trial court asked was broad enough to encompass the possibility that the jurors who responded affirmatively had close family members who were victims of sexual abuse or were themselves victims of abuse. As such, the court had a “duty to probe further when potential bias was detected.” Id. at 447. If potentially biased jurors are not rehabilitated in the course of the trial court’s questioning, they should be excused for cause. See State v. Brooks, 631 P.2d 878, 884 (Utah 1981) (noting that jurors who “expressed strong feelings of anger and frustration arising out of their personal experiences as victims” of similar crimes could not be rehabilitated). On the other hand, the court may determine, through sufficient questioning, that the juror would be unbiased. See Salt Lake City v. Tuero, 745 P.2d 1281, 1283 (Utah Ct.App. 1987) (holding, in a DUI prosecution, there was no abuse of discretion where “the [trial] court made significant efforts to determine if the potential juror could remain unbiased in light of his wife’s experience with a drunk driver”). See also State v. Moton, 749 P.2d 639, 643 (Utah 1988) (“[T]he trial court correctly concluded by a process of logic and reason, based upon common experience, that the prospective juror’s impressions were not so ‘strong and deep’ as to constitute bias which would close her mind against testimony that may be offered.”).

¶ 20 It is impossible to require jurors to check their life experiences at the door, but biased jurors, who cannot be rehabilitated after sufficient questioning, must be excused for cause. If there is any doubt as to the ability of a potential juror to act impartially, the trial court should remove that person from the panel. The court must consider the totality of the circumstances to understand the juror’s state of mind and evaluate the likelihood that the juror’s attitudes and experiences would prejudicially affect either party. The similarity between the crime charged and the experience that affected the juror, along with the amount of time that has passed since the juror’s experience, are important considerations for the trial court in determining whether the juror will act fairly and impartially.

¶ 21 “The trial court has traditionally been given considerable latitude as to the manner and the form of conducting the voir dire examination and is only restricted in that discretion from committing prejudicial error.” Id. “Nevertheless, we also view the exercise of discretion in light of the fact that it is a simple matter to obviate any problem of bias simply by excusing the prospective juror and selecting another.” Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981). “The level of investigation necessary once voir dire reveals potential juror bias will vary from case to case and is necessarily dependent on the juror’s responses to the questions asked.” Woolley, 810 P.2d at 445. However, in this case, there is no record of any investigation into the state of mind of two of the potentially biased jurors. In-depth psychoanalysis of such jurors is unnecessary, but the trial court must be thorough in questioning all potentially biased jurors and make a commonsense judgment as to whether a particular juror will act impartially.

¶22 It is immaterial that neither of the two jurors in question responded affirmatively when the judge initially asked whether their experience “would interfere with [their] ability to be fair and impartial,” because when “a trial court asks a prospective juror merely whether he can be ‘impartial,’ the court may well get an answer that is the product of the juror’s own confusion as to what impartiality is.” Mu’Min v. Virginia, 500 U.S. 415, 443, 111 S.Ct. 1899, 1914 (1991) (Marshall, J., dissenting) (footnote omitted). “It is unrealistic to expect that any but the most sensitive and thoughtful jurors (frequently those least likely to be biased) will have the personal insight, candor and openness to raise their hands in court and declare themselves biased.” State v. Ball, 685 P.2d 1055, 1058 (Utah 1984). The road to appropriate determinations regarding impartiality is not so direct.

¶ 23 The present case provides perfect illustrations of this phenomenon: One of the first questions the court asked after reading the Information was whether “there is anyone who[,] because of the nature of the case[,] believes they would be unable to be fair and impartial.” As previously discussed, five prospective jurors responded to this question, arid none of them ended up on the jury panel. Jurors A, B, C, D, and E could be considered “sensitive and thoughtful jurors [with] the personal insight, candor and openness to raise their hands in court and declare themselves biased.” Id. But it took a question finely honed to the circumstances of this case and additional prodding by the trial court to discover that other prospective jurors were also possibly biased. Once the trial court learned what had prompted those first five prospective jurors to answer as they did, it asked the more narrow question of whether “there is anyone else who either has been the victim of abuse or has had a family member or a close personal friend who has been the victim of abuse.” Remarkably, six more prospective jurors responded affirmatively — Jurors F, G, H, I, J, and K — and for one reason or another, none of the four that the trial court spoke to individually about their experiences ultimately served on the jury.

¶ 24 Prospective Juror G eventually conceded that an episode of abuse that affected her personally would “[p]robably” interfere with her ability to be fair and impartial, but she did not previously respond when the trial court had asked the more general question of whether “because of the nature of the case [she] would be unable to be fair and impartial.” In order to get the prospective juror to recognize and admit her potential bias, the court had to ask whether the jurors, their family, or friends had been the victim of sexual abuse, and then ask if that may affect their impartiality. “One of the reasons that a juror may be unaware of his own bias, is that the issue of impartiality is a mixed question of law and fact, the resolution of which necessarily draws upon the trial court’s legal expertise.” Mu’Min, 500 U.S. at 442-43, 111 S.Ct. at 1914 (emphasis in original) (internal quotations and citations omitted). Thus, the trial court often must first extract facts from prospective jurors, which would tend to make impartiality more or less likely, and then focus more narrowly on the issue of impartiality as it relates to those facts.

¶ 25 “ ‘When comments are made which facially question a prospective juror’s impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted.’ ” Woolley, 810 P.2d at 443 (quoting State v. Cobb, 774 P.2d 1123, 1126 (Utah 1989)) (emphasis added). The State argues that this standard should not apply in the instant case because the two jurors were not challenged by counsel. Similarly, Utah Rule of Criminal Procedure 18(e)(14) provides, with our emphasis, that “[n]o person may serve as a juror, if challenged, unless the judge is convinced the juror can and will act impartially and fairly.” We disagree that the lack of a challenge obviates the problem in this case. Woolley and rule 18(e)(14) presuppose that the trial court has fulfilled its duty to detect and investigate the potential for partiality so that counsel has the opportunity to intelligently and effectively exercise challenges to jurors. Clearly, a juror cannot be challenged for cause until there is a basis for the challenge. The trial court’s obligation in this regard is essentially independent of counsel’s actions. “[Tjrial judges [must] take care to adequately and completely probe jurors on all possible issues of bias,” State v. James, 819 P.2d 781, 798 (Utah 1991), so that the basis for challenges can be discovered. Only with that information on the table is counsel’s duty to make appropriate challenges triggered.

¶ 26 For the same reason, while the State is correct that Defendant neither attempted to have the jurors in question removed for cause, nor used a peremptory strike, the rule of State v. Menzies, 889 P.2d 393 (Utah 1994), cert. denied, 613 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995), “a case in which the Utah Supreme Court imposed a requirement for demonstrating prejudice in a related context,” Depew v. Sullivan, 2003 UT App 152, ¶ 31, 71 P.3d 601, is inapplicable. Because the trial court did not fulfill its obligation to fully probe the jurors about their potential prejudice, “the proceedings did not advance to the point at which, as in Menzies, a dispute arose over whether the trial court should have granted a challenge for cause.” Id. at ¶ 32.

CONCLUSION

¶27 When there is a specific reason to doubt a prospective juror’s impartiality, sound discretion requires the trial court (or counsel, at the court’s invitation) to question the juror so the court can meaningfully evaluate whether the juror will act impartially. Such did not occur in this case with respect to two jurors who served, and, accordingly, we reverse Defendant’s conviction and remand for a new trial.

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

      . The State acknowledges some difficulty, apparently clerical in nature, with the way the conviction was entered. We are told an effort to correct the problem was not successful. Our resolution of this appeal moots the concern.

      . While King raises several issues on appeal, we recite only the facts necessary to resolve the dispositive issue.

      . Although King was originally charged with one count of aggravated sexual abuse of a child, a first degree felony in violation of Utah Code Ann. § 76-5-404.1 (1999), the juty convicted him of sexual abuse of a child, a second degree felony, and at sentencing the trial court reduced the conviction to a third degree felony, all under the same statute. While we cite to the statutory codification in effect at the time of the incidents giving rise to this case, the current version is not substantively different.

      . As a convenience to the reader, we assign a sequential letter to each prospective juror, in the order they are identified in the record.

      . Juror B stated that she "has three little girls at home," and she “would have a difficult time listening” to the testimony in this case. She indicated that her emotions would "[plrobably not” interfere with her ability to listen to the evidence and render an impartial verdict. Although it is unclear from the record whether counsel exercised a peremptory strike or she was excused for cause. Juror B did not ultimately serve on the jury panel.
      Juror E responded in the negative to this question posed by the trial court: "Have you or any of your family members ever been the victim of a sexual crime?” However, when the court later questioned Juror E in private, it became apparent that her "best friend's daughter” had allegedly been abused, and it was this experience that prompted her prior indication of potential difficulty with this case. Juror E was subsequently excused for cause.

      . Jurors A, C, and D were each subsequently excused for cause because of experiences with sexual abuse that made them unable to be fair and impartial.

      . Even though the trial court's question did not specifically refer to sexual abuse, it is clear from the context that this is the type of abuse to which it was referring.

      .Peremptory challenges were exercised by counsel off the record, but the State maintains that its second peremptory strike was used to dismiss this juror.

      . The trial court was certainly thorough in its probing of each of the prospective jurors it spoke to, but there is no record that the court spoke to the two jurors in question. It is surprising that between the attorneys, the judge, and the jurors themselves, no one remembered to follow through with the court's plan to also speak to each of these two jurors in private. Although we fully acknowledge the possibility that it was discovered—perhaps through passing notes, an exchange of winks and nods, or an informal meeting in chambers—that these two jurors had only a tangential connection to a sex offense, "[u]nder the Utah Constitution, district courts are courts of record.” Briggs v. Holcomb, 740 P.2d 281, 282 (Utah Ct.App.1987). See Utah Const, art. VIII, § 1. "[I]n the face of that requirement,” district courts must "consistently mak[e] a record of all proceedings." Briggs, 740 P.2d at 282-83. Accordingly, we cannot speculate that the matter was satisfactorily resolved off the record; we must base our decision solely on what is in the record.

      . As provided in rule 18, "[t]he judge shall determine the method of selecting the jury,” Utah R.Crim. P. 18(a), and "[t]he court may permit counsel or the defendant to conduct the examination of the prospective jurors or may itself conduct the examination.” Utah R.Crim. P. 18(b). Thus, counsel’s questioning may also rehabilitate potentially biased jurors.

      . As provided in the Utah Rules of Criminal Procedure, "[n]o person may serve as a juror ... unless the judge is convinced the juror can and will act impartially and fairly.” Utah R.Crim. P. 18(e)(14). "Although not an evidentiary standard at all, the term 'convinced' implies a high standard for judicial decision-making.” Utah R.Crim. P. 18 advisory committee note.

      .As previously indicated, the trial court dutifully executed its responsibility to investigate and root out potential bias with respect to all but two of the prospective jurors. Regrettably, Jurors F and I somehow slipped through the cracks and ended up on the jury panel that ultimately convicted King.

      . Jurors G and J had themselves been victims of sexual abuse and were excused for cause. Juror H was dismissed with a peremptory strike, perhaps because his wife had been abused as a child. Juror K was ultimately not needed for this jury and was simply sent home.

      . An astonishing, but insightful, example of a juror's reluctance to admit partiality is given in Mu’Min:

      When initially queried, the juror admitted to having read about the case but insisted that she was impartial. The following colloquy then ensued:
      Q: When you said that you have only read about what [the defendant] has done, what do you mean by that?
      A: Well, we all know what she has done. You know, we all know what she has done. So it is now up to the court to see if she is guilty or innocent, but you have to go through the whole trial, you can't just read something in the paper and say that girl is guilty, you know. You understand?
      Q: Well, I am not sure. I am not sure what you mean when you say we all know what she has done.
      A: Well, we all know the girl went in and held up the bank....

        Mu’Min v. Virginia, 500 U.S. 415, 443 n. 4, 111 S.Ct. 1899, 1914 n. 4, (1991) (Marshall, J., dissenting) (alteration in original).

      . Given our resolution of this case, it is unnecessary to address Defendant's claim of ineffective assistance of counsel.

      . "The purpose for this probing is to facilitate 'both the detection of actual bias and the collection of data to permit informed exercise of the peremptory challenge.' " Depew v. Sullivan, 2003 UT App 152,¶ 12, 71 P.3d 601 (quoting State v. Taylor, 664 P.2d 439, 447 (Utah 1983)), cert. denied, 77 P.3d 338 (Utah 2003).

      ."In light of our decision to remand for a new trial, it is not necessary to discuss [Defendant's] other alleged errors.” Id. at ¶ 40 (internal quotations and citation omitted).