(concurring):
1 46 I concur with the analysis of parts II and III of the majority opinion. However, I write separately with regard to the analysis of part I because I believe that Duran invited the presumed error in the trial court's determination of Duran's HVO status and that application of the harmless-error rule is therefore precluded.
147 The invited error doctrine "prohibits parties from taking advantage of an error committed at trial when that party led the trial court into committing the error." State v. Maese, 2010 UT App 106, 1 9, 236 P.3d 155 (internal quotation marks omitted), cert. denied, 247 P.3d 774 (Utah 2011). "Further, parties are 'not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal."" Pratt v. Nelson, 2007 UT 41, 1 17, 164 P.3d 866 (quoting State v. King, 2006 UT 3, 118, 181 P.8d 202). " '[EJncour-aging counsel to actively participate in all proceedings and to raise any possible error at the time of its occurrence fortifies our long-established policy that the trial court should have the first opportunity to address a claim of error'" Id. (quoting State v. Win-field, 2006 UT 4, 1 15, 128 P.3d 1171).
4 48 In this case, the trial court discussed the particulars of the HVO penalty enhancement with trial counsel on the second day of trial. The court enunciated its understanding that the question about the HVO penalty enhancement was not an issue for the jury to decide and asked both counsel if that was their understanding as well. Both trial counsel confirmed agreement with the trial court's understanding that the enhancement decision was not a jury issue, and the court then confirmed that this issue would not be submitted to the jury. The pertinent portion of the trial court's discussion with counsel about the HVO penalty enhancement is as follows:
[Trial court]:.... Now, let me, before we look at jury instructions, it's my understanding that if the jury convicts, the question about the habitual criminal and all the enhancements, that is not an issue for the jury to decide.
[Defense counsel]: No, it is not.
[Trial court]: Is that your understanding too?
[Defense counsel): Nor is, well, not only the habitual eriminal but also the issue of prior convictions on the theft.
[Trial court]: Right. Amy enhancements or habitual criminal would simply be a matter for the Court rather than the jury? I know at one time it was different than that, but I think there's a case out of Provo that decided that's no longer am issue for the jury. But I just-I wanted to make sure that both sides are in agreement. The only thing they are going to decide is guilt or innocence on two Counts of Burglary, two Counts of Theft. Is that-
[Defense counsel]: That's my understanding....
[Prosecutor]: Um-
[Trial court]: Mr. Daines?
[Prosecutor]: I had heard that there's a case, I didn't know where it was from that has changed the standard bifurcating procedure. The bifurcating procedure would primarily then only be you're taking judicial notice of this district's own convictions.
[Trial court]: Okay. All right. So both sides agree that that's not going to be an issue for the jury, the enhancements or the habitual criminal, right? All right....
(Emphases added.) The above discussion demonstrates that defense counsel made affirmative representations to the trial court that the proper HVO penalty enhancement procedure was that the court should not present the enhancement issue to the jury. Such affirmative representations clearly fall within the seope of the invited error doctrine. See Pratt, 2007 UT 41, ¶23, 164 P.3d 366 ("[Ilnvited error generally occurs in [an] affirmative manner, such as where counsel stipulates to the court's instruction, states directly that there is no objection to a specific ruling of the court, or provides the court with erroneous authority upon which the court relies." (emphasis added)).
49 In addition to this affirmative representation, defense counsel reiterated his agreement with the HVO penalty enhancement procedure as previously set out by the court when defense counsel acquiesced to *481the trial court's release of the jury. After the jury rendered the verdict, the trial court asked both counsel, "Anything else before I release the jury?" Defense counsel responded, "We have nothing further, your Honor." Thereafter, the trial court asked the prosecutor how he wanted to handle the HVO enhancement matter. The prosecutor then expressed some concern over proceeding without a jury, stating, "Your Honor has indicated you are certain that this is your Honor's decision and not the jury's decision? That's the only thing that worr[ies] me." Whereby, the trial court again discussed and expressed its understanding of the HVO enhancement procedure with the prosecutor. During this discussion defense counsel remained silent and raised no objection or concerns about proceeding on the enhancement issue without the jury. The trial court, after its discussion with the prosecutor, ultimately decided not to submit the enhancement issue to the jury and proceeded to schedule a date for sentencing.
1 50 Such discussions concerning the HVO penalty enhancement procedure demonstrate the degree to which the trial court urged the parties to actively participate in the consideration of the enhancement issue by frequently requesting counsel input on the issue. The record further indicates that prior to releasing the jury and proceeding to the sentencing phase, the trial court encouraged the parties to read State v. Palmer, 2008 UT App 206, 189 P.3d 69, which the trial court relied upon in its determination on the HVO penalty enhancement procedure. Despite the trial court's various attempts to elicit and address any objections on the enhancement procedure before the sentencing phase, defense counsel, in contrast to his prior approval of the procedure enunciated, filed a mistrial motion shortly before the scheduled sentencing hearing was to be held raising an objection to the enhancement procedure.
{51 In the post-trial motion for mistrial, defense counsel alleged for the first time that Duran was entitled to have the same jury decide the HVO penalty enhancement based on the Palmer decision. The trial court then held arguments on defense counsel's motion for mistrial. During oral argument, the trial court gave a detailed description of the attempts it had made to address any objections on the enhancement procedure in a timely fashion and prior to releasing the jury and proceeding with Duran's sentencing hearing. The trial court stated,
My recollection of what happened here is that before the trial started we met in chambers. I met with both counsel in chambers, to discuss the question of how to go about handling the habitual eriminal. And we were all in agreement that we were going to bifurcate the trial. The jury would not know anything at all about his prior record.
And then when we were in chambers I mentioned something about this State versus Palmer case, the one that had been decided [by] the Court of Appeals, and the holding. I said, it seems to me that what they are saying is that the jury is not necessarily required to hear evidence when we're talking about enhancing penalties. And I asked both attorneys what your position was on this. And both said, I'm not sure. I haven't had a chance to read the case.
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I suggested that both sides take a look at the case, and let me know how you wanted to proceed. My impression is, that after we finished the trial, after we got the verdict from the jury, neither side raised an objection or requested that I keep the jury.
After arguments on the matter, the court denied this motion ruling that Duran had waived any right to a jury trial on the HVO penalty enhancement. Thereafter, contrary to his argument in the mistrial motion that Duran was entitled to have the same jury decide the issue, defense counsel then appears to provide his active support for the court's decision to present the issue to neither the same jury nor a newly impaneled jury. Defense counsel stated, "[Wlhich-brings up the point that whether a jury was impaneled-I think the jury would have been instructed primarily on judicial notice from your Honor[,] ... [wlhich is another good reason not to have a jury." Defense counsel's representation about the benefits of pro*482ceeding without a jury in this instance compounds the invited error by assuring the trial court and validating the decision to conduct the HVO penalty enhancement hearing without the presence of a jury. This affirmative support for the trial court's presumed erroneous decision is another example of how invited error, in this case compounded, provided the basis for the court's action. "'Affirmative representations that a party has no objection to the proceedings fall within the scope of the invited error doctrine because such representations reassure the trial court and encourage it to proceed without further consideration of the issues."" Pratt, 2007 UT 41, ¶ 18, 164 P.3d 866 (quoting Winfield, 2006 UT 4, 1 16, 128 P.3d 1171).
152 Defense counsel's affirmative representations, both before and after the dismissal of the jury, in agreement with the court's interpretation of the Palmer decision and oral ruling not to present the enhancement issue to the jury constitutes invited error. "[Ilnvited error is procedurally unjustified and viewed with disfavor, especially where ample opportunity has been afforded to avoid such a result." State v. Tillman, 750 P.2d 546, 560-61 (Utah 1987). The invited error doctrine "arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 866. The review of this issue under the harmless-error rule effectively undermines the long-established principles of the invited error doctrine that discourages "parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal," id., and the policy that the trial court should have the first opportunity to address a claim of error, see id. Moreover, the application of the invited error doctrine, "conserves judicial resources and promotes speedy justice for all concerned." Cf. Boyle v. Christensen, 2011 UT 20, 114, 251 P.3d 810 (Utah 2011) (stating that the preservation rule conserves judicial resources and promotes speedy justice).
153 Application of a harmless-error analysis, in this case sets the unfortunate precedent that attorneys may actively participate in invited error, yet benefit from any error which does not meet the test for harmless error. I believe such a result would be most regrettable. As a result, I would affirm the trial court on the basis of invited error and would not review the claim under the harmless-error rule.