Opinion
A12-0350
01-22-2013
State of Minnesota, Respondent, v. Roy Ellsworth Gerber, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Charles F. Clippert, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Reversed and remanded
Chutich, Judge
Hennepin County District Court
File No. 27-CR-11-17664
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Charles F. Clippert, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Hudson, Judge; and Worke, Judge.
UNPUBLISHED OPINION
CHUTICH , Judge
On appeal from his conviction of second-degree criminal sexual conduct, appellant Roy Ellsworth Gerber argues that (1) his stipulated-facts trial was invalid because the parties did not stipulate to all relevant facts; and (2) his conviction must be reversed because his trial attorney failed to subject the state's case against him to meaningful adversarial review. Although Gerber's stipulated-facts trial was invalid, we conclude that the error was harmless. We reverse and remand for a new trial, however, because under controlling caselaw Gerber was denied effective assistance of counsel.
FACTS
In June 2011, Hennepin County charged Gerber with two counts of second-degree criminal sexual conduct based on allegations by Gerber's daughter I.E. Gerber waived his right to a jury trial and agreed to a stipulated-facts trial. The parties submitted several exhibits to the district court for the trial including the criminal complaint, police report, and the recorded interviews of I.E. and her brother by social workers. These documents contained conflicting information; specifically, I.E. stated that Gerber repeatedly touched her in a sexual manner but Gerber denied these allegations. Gerber's attorney did not present any argument on the weight or validity of the state's case and did not draw the court's attention to the conflicting evidence in the submitted documents.
After considering the evidence, the district court found Gerber guilty of one count of second-degree criminal sexual conduct and, based on the parties' prior agreement, dismissed the remaining count. Gerber now appeals.
DECISION
I. Stipulated-Facts Trial
This court reviews de novo the district court's compliance with the Minnesota Rules of Criminal Procedure. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).
Rule 26.01 permits the court to make a decision on a defendant's guilt based on stipulated facts:
The defendant and the prosecutor may agree that a determination of defendant's guilt . . . may be submitted to and tried by the court based on stipulated facts. Before proceeding, the defendant must acknowledge and personally waive the rights to: (1) testify at trial; (2) have the prosecution witnesses testify in open court in the defendant's presence; (3) question those prosecution witnesses; and (4) require any favorable witnesses to testify for the defense in court.Minn. R. Crim. P. 26.01, subd. 3(a). "If the court finds the defendant guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal as from any trial to the court." Id., subd. 3(e).
Gerber argues that his stipulated-facts trial under rule 26.01, subdivision 3, was improper "because the parties disagreed to the central fact, whether Gerber had sexual contact with I.E." To support this argument, Gerber cites this court's opinion in Dereje v. State, 812 N.W.2d 205 (Minn. App. 2012), review granted (Minn. June 27, 2012).
In Dereje, the defendant and the state agreed to a stipulated-facts trial and then submitted a body of evidence to the judge, rather than stipulating to specific facts. Id. at 208-09. Based on the evidence, the district court found the defendant guilty of fifth-degree criminal sexual conduct. Id. at 209. This court reversed, holding that "[a] stipulated facts trial held pursuant to Minn. R. Crim. P. 26.01, subd. 3, must be based on facts agreed to by the parties, and not on a body of evidence including disputed facts." Id. at 211. Having found the trial to be invalid, this court proceeded with a plain-error analysis. The court concluded that it was plain error for the district court to resolve disputed facts, but the error did not affect the appellant's substantial rights because the appellant had "a valid court trial, in which the evidence was received by stipulation." Id. at 211 (citing Minn. R. Crim. P. 26.01, subd. 2).
Here, the parties agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3, but then submitted a number of documents to the court that contained conflicting evidence on the key issue of the case, whether Gerber had sexual contact with I.E. The district court reached its verdict based on that body of evidence rather than agreed-upon facts. Because Gerber's trial was based on disputed facts, under Dereje, it was not a valid stipulated-facts trial. Dereje, 812 N.W.2d at 211.
Gerber's trial is more appropriately characterized as a court trial held without a jury under Minn. R. Crim. P. 26.01, subd. 2. That subdivision permits a trial to the court based on the "stipulation to a body of evidence [and] permit[s] a court trial to proceed without live witnesses and based only on documentary testimony." Dereje, 812 N.W.2d at 211. Thus, although Gerber's trial was an invalid stipulated-facts trial, it was "a valid court trial, in which the evidence was received by stipulation." Id. Therefore, the error was harmless because it did not affect Gerber's substantial rights.
II. Ineffective Assistance of Counsel
This court reviews a claim of ineffective assistance of counsel de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
A defendant is guaranteed the assistance of counsel at trial by both the United States and Minnesota constitutions. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. Typically, ineffective-assistance-of-counsel claims are analyzed as trial errors under the standard developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, a defendant must show that (1) his counsel's representation fell below an objective standard of reasonableness; and (2) as a result of this, but for counsel's error, the outcome of the trial would have been different. Williams v. State, 764 N.W.2d 21, 29 (Minn. 2009).
Under certain circumstances, however, a counsel's ineffective assistance may amount to structural error. Dereje, 812 N.W.2d at 211. A "structural error affects the framework within which the trial proceeds, rather than simply an error in the trial process itself and calls into question the reliability and fairness of the trial." Dalbec, 800 N.W.2d at 627 (quotation omitted). A trial counsel's error may be structural when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Dereje, 812 N.W.2d at 211 (quotation omitted). This narrow exception to the Strickland standard "must involve a 'complete' failure by counsel and does not apply to counsel's failure to oppose the State's case 'at specific points' in the proceeding." Id. at 628 (quoting Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851 (2002)). The "burden rests on the accused" to "show that the facts of [the case] warrant inclusion" as a structural error. Id.
Gerber again relies upon Dereje to contend that his trial counsel's actions fit this narrow exception because counsel failed to "subject the evidence against him to meaningful adversarial testing." We agree that Dereje controls the result here. The state's case was based primarily on I.E.'s version of the events, which Geber disputed. Gerber's trial counsel failed to make any argument to the court that Gerber was innocent or even note that there were disputed facts in the documents submitted to the court. See Dereje, 812 N.W.2d at 211 (finding structural error because "trial counsel made no attempt to draw the court's attention to the disputed factual evidence in a case that hinged on credibility"). We recognize that lack of oral or written argument alone would not amount to a structural error. See, e.g., Dalbec, 800 N.W.2d at 628 (finding that failure to submit a written closing argument is not structural error). But here, as in Dereje, trial counsel failed to challenge the state's case in any meaningful way. Such error is structural and requires reversal of Gerber's conviction and remand for a new trial.
Reversed and remanded.