concurring in part and dissenting in part:
57 I concur in large part in Chief Justice Durrant's opinion for the court, but take issue with two points in the majority's analysis. First, I disagree with the court's decision to resolve on appeal the question whether Alexander had knowledge of the elements of the crime he pled guilty to. That question was neither pressed by Alexander in his motion to withdraw nor resolved by the district court on the record. Because our opinion today breaks new ground in clarifying the centrality of that issue, we should not fault the parties (least of all the non-moving party) for failing to present evidence of relevance to its resolution. I would give the parties a chance to litigate the key factual question on remand.
158 Second, I would base the decision affirming the court of appeals refusal to engage in harmless error review on the textual reach of rule not on a limiting construction based on our professed intent in adopting the rule. In my view, the "substantial rights" language in rule 11(l) is an unmistakable reference to harmless error review. Yet although the rule envisions an evaluation of harmlessness or prejudice with respect to "[alny variance from the procedures required by thle] rule," Utah R.Crim. P. 11(l) this case does not turn on a mere variance from the rules but, as the court properly concludes, on the statutory question whether the defendant's plea was knowingly and voluntarily entered. Rule 11(l)'s harmless error standard thus has no application here, and I would affirm on that basis.
I
¶ 59 As the majority correctly concludes, a plea withdrawal motion cannot rest on a mere technical violation of the prophylactic requirements of rule 11. The withdrawal statute in Utah, rather, requires proof that the plea was entered unknowingly or involuntarily by the defendant. Utah Code § 77-13-6(2)(a). On that basis, the court of appeals erred in its decision to order the withdrawal of Alexander's guilty plea on the mere basis of the district court's failure to follow rule 11 in every particular.
¶ 60 To this extent I'm on the same page with the majority, which reaches this same conclusion. I part company with my colleagues, however, on the court's decision to affirm the court of appeals' decision reversing the denial of Alexander's motion to withdraw on the alternative ground that its "review of the record does not demonstrate that [] Alexander was informed of or understood the essential elements of the burglary charge." Supra ¶ 37.
*388¶ 61 The court's assessment of the state of the record seems correct as far as it goes. But it is equally true that "the record does not demonstrate that [ ] Alexander was [not] informed of or [did not] underst[and] the essential elements of the burglary charge." The record is simply silent on this controlling question. And the reason is straightforward: Alexander's motion to withdraw never asserted that he lacked knowledge of the elements of the crime, but rested on the bare assertion of a rule 11 violation.
¶ 62 In his motion to withdraw, Alexander relied solely on his legal theory that the district court's plea colloquy did not strictly follow rule l1(e). This oversight, he argued, failed to "provide [him] the factual support for the act component or the mental state component of sexual battery." Thus, Alexander's motion alleged that the court's noncompliance ultimately led to a plea that "was not entered knowingly and voluntarily pursuant to [rule] 11 and the Due Process Clause of the United States Constitution." Although the motion mouthed the words "knowingly and voluntarily," however, Alexander never raised the factual question of his state of mind in entering the guilty plea. He simply rested on the legal theory that a rule 11 violation alone was sufficient to render his plea unknowing or involuntary and thus subject to withdrawal.
¶ 63 Alexander pressed this same theory in the subsequent motion hearing, arguing that "strict compliance" with rule 11 was required and that "in this case strict compliance has not occurred, because .... [there is nothing either in the Amended Information or in the statement in advance of plea, or in the colloquy ... that defines and sets forth the elements of sexual battery." Thus, without ever alleging that he did not know the elements of the crime he was pleading to, Alexander framed his argument not as a question of fact but as a pure question of law-whether the court's colloquy "strictly complied" with rule 11(e).
¶ 64 The court and the parties at the motion hearing focused on this legal issue, and never engaged the critical factual question of Alexander's state of mind. It is no surprise, then, that the district court received no evidence one way or the other on Alexander's knowledge of the elements of his crime. Under Alexander's own theory, he had no reason to introduce evidence of his state of mind; to him, the court's deficient colloquy was enough. The State likewise had no incentive to present evidence on a matter that was never in issue.
1 65 The absence of evidence in the record, then, can hardly be counted against the prosecution. Alexander never claimed an absence of knowledge of the elements of the crime he was pleading to, and the State thus had no reason to introduce evidence establishing that "Alexander was informed of or understood the essential elements of the burglary charge." Supra ¶ 37.
1 66 For these reasons, the record likewise tells us nothing about the answer to the question the court now deems dispositive. It simply indicates that the parties and the lower courts proceeded on an erroneous assumption about the controlling law. We have now corrected that error. And having done so, the correct and fair response is to give the parties the chance to litigate the question they have never litigated and that we now deem controlling.1
T67 The question of Alexander's state of mind when entering his guilty plea is a clas*389sic question of fact.2 We owe substantial deference to the resolution of such an issue by the district court, as it is the court in our system with procedures for-and experience and expertise in-accepting and weighing testimonial and other evidence.3
1 68 We flout that deference when we render our own judgment on a controlling question of fact without ever giving the district court a first crack at the issue. And we deprive the parties of their rightful day in court when we resolve matters on the basis of their failure to present evidence that they never had a meaningful opportunity to present. I respectfully dissent as I see no basis for faulting the State for failing to present evidence that the defendant's motion never called into question.
169 If anything, the lack of evidence in the record ought to be counted against the party who bears the burden of proof. That party, of course, is Alexander, as the party pressing the motion to set aside his earlier guilty plea. The majority recognizes that he bears the burden as the moving party. Su-pro " 23. That fact alone arguably should be enough to affirm the denial of Alexander's motion to withdraw, as a core element of the burden of proof is the burden of presenting some evidence to sustain the movant's case.4 The court turns that principle on its head, faulting the non-moving party for failing to anticipate an alternative argument that the movant might raise on appeal-and might convince the appellate court to reach without a remand.
¶ 70 At a minimum, the prosecution is at least entitled to a remand to respond to the factual basis of the motion to withdraw as reformulated on appeal. I respectfully dissent from the court's refusal to allow for that proceeding.5
*390II
¶ 71 I agree with the majority's affirmance of the court of appeals' refusal to conduct a harmless error review in this case, but would base the decision on somewhat different grounds. The text of rule states that "[alny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Utah R.Crim. P. 11(l). In context, the consideration of an effect on "substantial rights" is an unmistakable reference to traditional "harmless error" review, which asks whether an intermediate error in the proceedings below has a prejudicial effect on the ultimate judgment. The "substantial rights" formulation appears in both our federal and state rules of criminal procedure,6 and has long been associated with harmless error.7 Given the settled meaning of the text of the rule, we are in no position to override it with an assurance as to our true "intent" in adopting the rule, supra ¶ 44.
T72 We have procedures in place for amending the language of rules we deem ill-advised or- unwieldy. Unless and until we alter the text we have previously adopted, lawyers and litigants ought to be able to rely on the settled understanding of the words employed in our rules. Where our rules incorporate legal terms of art, those terms should 'be deemed to convey their settled meaning and should not be displaced by our subsequent "clarification" of what we really meant.
T 73 I would accordingly read rule 11(4) to mean what it says, which is to instruct courts to disregard "[alny variance from the procedures required by this rule which does not affect substantial rights," Utah R.Crm. P. 11(4), in the traditional sense that harmless, non-prejudicial violations of rule 11 do not justify setting aside a judgment. That is not to say that I would find error in the court of appeals' refusal to engage in harmless error review in this case. As the majority properly concludes, this case is not about a mere "variance from the procedures required by" rule 11, as such a variance is not enough to sustain a motion to withdraw a guilty plea. Instead, the question in this case is a statutory one-whether Alexander's plea was knowingly and voluntarily entered. That statutory question in no way implicates the rule 11(l) standard, which deals only with "variance[s] from the procedures required by thie] rule."
¶ 74 Harmless error review is thus inapplicable here under the text of rule 11(l). I would affirm the court of appeals' treatment of this issue on that basis, without relying on a construction of rule 11 that limits the reach of its plain language.
. See Pullman-Standard v. Swint, 456 U.S. 273, 291-292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) ("When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permil the trial court to make the missing findings[.] ... [WJhere findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue."); United States v. Hasan, 609 F.3d 1121, 1129 (10th Cir. 2010) ("When the [appellate court] notices a legal error, it is not ordinarily entitled to weigh the facts itself and reach a new conclusion; instead, it must remand to the district court for it to make a new determination under the correct law."); see also, e.g., State v. Harding, 2011 UT 78, ¶ 39, 282 P.3d 31 (holding that because it was "a case of first impression" and because the court had "never before articulated the [pertinent legal] test .... remand [was] appropriate so that the district court [could] enter particularized findings of fact bearing upon the [relevant] questions.").
. See Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 8, ¶ 40, 270 P.3d 486 (factual findings "entail[] the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind." (emphasis added) (alteration in original) (internal quotation marks omitted)).
. Id. (explaining that findings of fact are accorded "the most deference" in light of the district court's "comparative advantage in its firsthand access to factual evidence"); see also State v. Pena, 869 P.2d 932, 936 (Utah 1994) (holding that appellate standard of review with respect to findings of fact "is highly deferential to the trial court because it is before that court that the witnesses and parties appear and the evidence is adduced" and the judge of that 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.").
. See Koesling v. Basamakis, 539 P.2d 1043, 1046 (Utah 1975) (''The proponent of a proposition has two burdens relative to his proof: to produce evidence which proves or tends to prove the proposition asserted; and to persuade the trier of fact that his evidence is more credible or entitled to the greater weight"); see also State v. Clark, 2001 UT 9, 115, 20 P.3d 300 (noting that to survive a motion for directed verdict, the prosecution bears the burden of "produc[ing] believable evidence of all the elements of the crime charged." (internal quotation marks omitted)); Herbert v. State, 136 Md.App. 458, 766 A.2d 190, 202 (2001) ("As a general rule, the moving party on any proposition, civil or criminal, has both the burden of production and the burden of persuasion.").
. The resolution of this matter is hardly a foregone conclusion on remand. Defense counsel in this case arguably represented to the court that Alexander had been properly informed of the nature and elements of burglary when he pled guilty to it, and that representation is entitled to judicial deference. Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) ("Where a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.").
During the plea colloquy below, the district court asked defense counsel whether "[he'd] explained to [Alexander] what a second degree felony means," and whether counsel "felt] like [Alexander was] agreeing to [it] knowingly and voluntarily." In response, Alexander's lawyer stated that he had explained these things to his client, and that he'd "reviewed the amended information with [Alexander] as well as thle] statement of defendant in support of a guilty plea." The majority correctly notes that the amended information did not include the sub-elements of sexual battery; but Alexander's statement in support of his guilty plea did indicate that he had "committed the offense of sexual battery on [the victim]." Although it could be inferred that counsel did not discuss anything more than the bare bones of the charges his client would be pleading guilty to, that inference is hardly inevitable. The district court could also infer that defense counsel explained everything *390of legal consequence to his client-including the definition and elements of a sexual battery.
The majority dismisses the significance of this dialogue, concluding that "[blecause defense counsel did not affirm on the record that he had explained the element of 'intent to commit sexual battery' to Mr. Alexander, the court cannot assume that Mr. Alexander understood this critical element." Supra 133. But the inverse of this statement is also true: The court cannot assume that Alexander did not understand the element of sexual battery after discussing i with his attorney. In light of the reliance a court may have on defense counsel's assurances under Bradshaw, the court could infer that Alexander's counsel fully explained to his client what it meant to have committed sexual battery, including the elements of that underlying criminal behavior. In any event, we ought not to assume the answer to this crucial question, which has never been litigated and at a minimum ought to be resolved on remand.
. See Fed.R.Crim.P. 11(b) ("Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights." (emphasis added)); id. 52(a) ("Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." (emphasis added)); Uran R. Crim P. 30(a) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded." (emphasis added)).
. Harry T. Edwards, To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1174 (1995) {stating that harmless error in the federal system "traces its lineage to ... the former Judicial Code, which in 1919 for the first time directed appellate courts reviewing trial proceedings to ignore 'technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'" (emphasis added) (footnote omitted)).