(concurring in part and dissenting in part):
123 I agree with the majority that Defendant had a right to counsel at the restitution hearing in this matter, that he did not waive that right, and that the trial court's restitution order must therefore be vacated and the issue remanded for further proceedings. Accordingly, I concur in sections two and three of the majority opinion analysis.
*713T24 I do, however, respectfully dissent from section one of the majority's analysis, addressing the interplay between federal bankruptey law and Utah's restitution scheme. Utah law links the availability of criminal restitution to a victim's ability to recover civil damages, see Utah Code Ann. § 76-3-201(1)(c)-(e) (Supp.2006), and thereby creates many opportunities to argue civil law in the restitution context. See, e.g., In re T.W., 2006 UT App 259, ¶¶ 21-26, 139 P.3d 312 (Thorne, J., concurring) (discussing the application of various civil law concepts to restitution proceedings); State v. Houston, 2000 UT App 242, ¶ 13 & nn. 2-3, 9 P.3d 188 (explaining that a restitution court may not look beyond the facts and circumstances established by a conviction and that a defendant is entitled to a civil jury trial on any remaining fact question bearing on liability); State v. Robinson, 860 P.2d 979, 983 (Utah Ct.App.1993) ("Restitution should be ordered only in cases where liability is clear as a matter of law and where commission of the crime clearly establishes causality of the injury or damages."). And, the proper place to initially raise any such arguments is in the trial court. See In re T.W., 2006 UT App 259 at 127 (Thorne, J., concurring) (discussing preservation requirement).
125 Because Defendant was denied the assistance of counsel below, his ability to present properly supported civil law arguments in the trial court was severely hampered. As we are already remanding this matter for another restitution hearing at which Defendant may have the assistance of counsel, I think it best that counsel be allowed to present and develop such arguments, including any arguments that rest on federal bankruptey law, as counsel sees fit. On remand, counsel may be able to identify factual or legal issues that are not presently before this court. On the current record, which results from Defendant's previous un-counseled hearing, I consider it ill-advised to reach any of the substantive dischargability arguments raised in this appeal.
{26 For these reasons, I would simply vacate the restitution order and remand the matter for further proceedings. I would leave any substantive arguments to be addressed at such time as they may reach us again, after a trial court hearing at which Defendant is not denied his right to counsel.