(dissenting):
125 I see this case much differently than do my colleagues.
126 Judge Robin W. Reese took Defendant's plea. In that proceeding, Defendant agreed to pay restitution to the victim, his former girlfriend. Sentencing was then scheduled before Judge J. Dennis Frederick. When Defendant failed to appear for sentencing, Judge Frederick sentenced him in absentia. No sentencing information was presented at that proceeding, and Judge Frederick imposed the maximum jail time and fine. On the first appeal, this court reversed Defendant's sentence in accordance with State v. Wanosik, 2001 UT App 241, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002). We then remanded the case for re-sentencing.
T27 At the resentencing hearing, Defendant appeared and affirmatively asserted that, under his plea agreement, he owed restitution. He said he owed about $900, maybe "a little higher," although the victim testified that $744.80 would cover her losses. Judge Frederick ordered Defendant to pay the lesser sum in restitution, plus the maximum jail time and fine. Apparently, Defendant had hoped that he would be ordered to pay just the restitution and:no fine. Defendant's attorney made the following statement to the court:
It ... would be my request on behalf of Mr. Samora that the Court do a couple of things. One, that the Court would waive the fing. There is some restitution owing that was part of the negotiation in this case to the victim. They've-Mr. Samora and the victim in the case had a fairly long-term relationship before this all happened and there was, as a part of the negotiation, {an agreement] to pay some restitution with respect to that.' f
We'd ask the Court to-to waive or at least to reduce the fine substantially and- and ask that the Court give him eredit for time served on this case.
128 Defendant never claimed below that the imposition of restitution, in addition to the fine, would violate due process or Utah Code Ann.. § 76-8-405 (1999). Because Defendant did not raise this issue below, we are precluded from addressing it unless Defendant can demonstrate. that exceptional circumstances exist or plain error occurred. See State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346. On appeal, Defendant mentions plain error in reciting what he believes to be the applicable standard of review, but does not even purport to demonstrate how the trial court plainly erred. We, therefore, are precluded from addressing the issue.
1 29 We would be precluded from addressing the issue even if Defendant had articulated a plain error argument on appeal. "To establish plain error, an appellant must demonstrate that (1) an error exists, (i) the error should have been obvious to the trial court, and (ii) the error is harmful'" State v. Pecht, 2002 UT 41,¶ 18, 48 P.3d 981 (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)). Plain error, however, can never be urged when the appellant affirmatively invites the court's ruling. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (stating that "where invited error butts up against manifest injustice [or plain error}, the *610invited error rule prevails"). "The doctrine of invited error 'prohibits a party from setting up an error at trial and then complaining of it on appeal'" Id. at 1205 (citation omitted). Otherwise, a criminal defendant could invite prejudicial error and "implant it in the record as a form of appellate insurance...." State v. Parsons, 781 P.2d 1275, 1285 (Utah 1989). In this case, Defendant affirmatively raised the issue of restitution and agreed that restitution was owing. He did not claim that, if restitution were ordered, he had a due process or statutory entitlement to a reduction in the fine. Given how he invited the court to impose restitution, Defendant is now in no position to challenge it on appeal. See Perdue, 813 P.2d at 1205.
30 Even if we could properly reach the merits of Defendant's contention on appeal, the argument fails because the first sentence had no legal effect. At resentencing, the trial court was therefore not limited by the terms of the first sentence. See State v. Babbel, 813 P.2d 86, 88 (Utah 1991) (stating that " 'the rule followed by most jurisdictions is that an unlawful sentence is of no legal effect, allowing the court to correct the sentence by imposing lawful terms at any time the illegality is discovered, regardless of whether the correction involves an increase' ") (quoting Annotation, Power of Court to Increase Severity of Unlawful Sentence-Modern Status, 28 A.L.R.Ath 147, 152 (1984)).
1 31 The main opinion is wrong in trying to distinguish this case from Babbel. In Bab-bel, the Utah Supreme Court cited the statute that preceded rule 22(e) of the Utah Rules of Criminal Procedure for the proposition that the trial court can " 'correct an illegal sentence, or a sentence imposed in an illegal manner, at any time'" Babbel, 813 P.2d at 87 (citation omitted). The supreme court stated that "[the correction of an illegal sentence stands on a different footing from the correction of an error in a convietion." Id. at 88. Therefore, the court held that "the principles underlying" the cases holding that federal due process prohibits a harsher sentence from being imposed in a second trial for the same offense after a reversal of the first conviction, "have no application [to tlhe correction of an illegal sentence." Id.
132 The initial sentence in the present case was illegal because it was improperly imposed in Defendant's absence. That was precisely how the first appeal was argued. When we remanded the case, we expressly noted that the court may correct an illegal sentence at any time. See State v. Samora, 2001 UT App 266 at n. 1 (per curiam) (unpublished mem. decision) (referring to Utah R.Crim. P. 22(e)). My colleagues cannot now change course and hold that a sentence imposed contrary to law is not an illegal sentence. Rule 22(e) itself treats equally "an illegal sentence" and "a sentence imposed in an illegal manner." Utah R.Crim. P. 22(e). Because this case involves an illegal sentence, there can be no presumption of vindictiveness as described in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). See Babbel, 813 P.2d at 87-88. When it resentenced Defendant, the trial court was therefore not limited by the terms of the prior sentence. See id.; see also Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), for the proposition that "[nlothing in the Constitution requires a judge to ignore 'objective information ... justifying the increased sentence' ").
83 Accordingly, I would affirm the sentencing order.