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Daniel Dalbec was found guilty of third-degree criminal sexual conduct. At Dalbec's trial, counsel for the State and Dalbec agreed to submit written closing arguments to the trial court, but defense counsel failed to submit a closing argument. On appeal, Delbec argued that he was entitled to a new trial based on a structural error that allegedly occurred when the trial court adjudicated his guilt without having received a closing argument from his counsel. The court of appeals reversed Dalbec's conviction and granted Dalbec a new trial based on the structural error. The Supreme Court granted the State's petition for review and reversed the court of appeals. At issue was whether defense counsel's failure to submit a written closing argument constituted structural error requiring automatic reversal and a new trial. The Court held (1) defense counsel's failure to submit a closing argument did not result in structural error, and (2) the trial court's adjudication of Dalbec's guilt without the benefit of closing argument was not structural error. Remanded.Receive FREE Daily Opinion Summaries by Email
STATE OF MINNESOTA
IN SUPREME COURT
Court of Appeals
State of Minnesota,
Filed: July 27, 2011
Office of Appellate Courts
Daniel Brian Dalbec,
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Tom N. Kelly, Wright County Attorney, Buffalo, Minnesota, for appellant.
Daniel J. Supalla, Briggs and Morgan, P.A., Minneapolis, Minnesota, for respondent.
Defense counsel‟s failure to submit a written closing argument was not structural
Reversed and remanded.
Respondent Daniel Brian Dalbec was charged with third-degree criminal sexual
conduct in violation of Minn. Stat. § 609.344, subd. 1(d) (2010). At Dalbec‟s bench trial,
counsel for the State and Dalbec agreed to submit written closing arguments to the trial
court. For reasons not explained in the record, defense counsel failed to submit a closing
argument. The trial court subsequently found Dalbec guilty of third-degree criminal
sexual conduct as charged. On appeal to the court of appeals, Dalbec argued, among
other things, that he was entitled to a new trial based on structural error that allegedly
occurred when the trial court adjudicated his guilt without having received a closing
argument from his counsel. The court of appeals agreed and granted Dalbec a new trial.
We granted the State‟s petition for review and, for the reasons discussed below, reverse
the court of appeals and remand for consideration of Dalbec‟s remaining claims.
The material facts in this case are not in dispute. According to S.J., the victim, she
awoke at 5:00 a.m. the morning of July 1, 2006, and had very little to eat throughout the
day. She later attended a party at Dalbec‟s house, where he lived with a friend of S.J.‟s
S.J. consumed between six and eight alcoholic beverages throughout the
evening, but had stopped drinking by 10:30 p.m. S.J. fell asleep on a couch sometime
after midnight. She awoke sometime later in Dalbec‟s bed with a cramp-like pain in her
vaginal area, her bra pulled up, and her underwear around her knees. Dalbec, without
pants or underwear, was also in the bed. There was testimony that one witness saw S.J.
and Dalbec talking, heard Dalbec offer his bed for S.J. to sleep in, and heard Dalbec say
he would sleep on the floor. Neither S.J. nor Dalbec remember this conversation. After
waking up in Dalbec‟s bed, S.J. immediately left the room and told a number of people
that she thought Dalbec had raped her. Later that day, she went to the hospital for a
sexual assault exam and also informed the police about the incident. At the hospital,
semen subsequently determined to have come from Dalbec was found in S.J.‟s vaginal
After a two-day bench trial, the trial court asked the attorneys how they would like
to proceed with closing argument. Defense counsel suggested written closing arguments.
Counsel for the State agreed, and a two-week deadline was set.
however, never submitted a closing argument before the deadline expired, nor did he tell
the court that he was waiving closing argument. A court clerk called defense counsel to
inquire about whether a closing argument would be forthcoming. Counsel‟s response, if
any, is not clear from the record, but counsel never did submit a closing argument. The
court ultimately found Dalbec guilty of third-degree criminal sexual conduct.
Dalbec appealed his conviction, alleging five errors entitling him to either a new
trial or a reversal of his conviction. One of the alleged errors was that the trial court
committed structural error when it found Dalbec guilty without having received a closing
argument from defense counsel. Addressing this issue first, the court of appeals agreed
with Dalbec that structural error had occurred, reversed the conviction, and remanded the
case to the trial court for a new trial. State v. Dalbec, 781 N.W.2d 430, 437 (Minn. App.
2010). Because it reversed Dalbec‟s conviction based on the structural error, the court of
appeals did not address the other issues Dalbec submitted on appeal.
The question before us in this appeal is whether defense counsel‟s failure to
submit a written closing argument constitutes a structural error, requiring automatic
reversal and a new trial. Dalbec maintains that he was denied his constitutional right to
counsel at a critical stage of trial when the court found him guilty without a closing
argument having been presented on his behalf. The State argues that Dalbec‟s claim is
actually a claim of ineffective assistance of counsel involving a trial error.
There is a fundamental difference between structural error and trial error.
Structural error consists of “defects in the constitution of the trial mechanism, which defy
analysis by „harmless-error‟ standards” because “[t]he entire conduct of the trial from
beginning to end is obviously affected.” Arizona v. Fulminante, 499 U.S. 279, 309-10
(1991). In other words, structural error “affect[s] 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. Id. at 310; see also State v. Brown, 732 N.W.2d 625,
630 (Minn. 2007). Structural error represents “a very limited class” of errors, Johnson v.
United States, 520 U.S. 461, 468 (1997), which requires automatic reversal.
Supreme Court has articulated several justifications for the automatic reversal
requirement, including (1) fundamental unfairness, (2) difficulty in assessing the
prejudice due to the nature of the error (e.g., denial of the right to a public trial), and
(3) irrelevance of harmlessness (e.g., denial of the right of self-representation). United
States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006). Conversely, “trial error” is
“error which occurred during the presentation of the case . . . and which may therefore be
quantitatively assessed in the context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S.
Ineffective-assistance-of-counsel claims are generally analyzed as trial errors
under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a party claiming
ineffective assistance of counsel must prove both deficient performance and prejudice.
See State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). Certain counsel-related errors,
however, may be structural errors, which do not require a showing of prejudice. The
justification for presuming prejudice in these types of cases is that the situation presents
“circumstances that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 658
(1984). In Cronic, the U.S. Supreme Court outlined three categories in which counselrelated errors would be considered structural error: (1) when “the accused is denied
counsel at a critical stage of his trial,” (2) when “counsel entirely fails to subject the
prosecution‟s case to meaningful adversarial testing,” and (3) when circumstances show
that the probability that a fully competent lawyer “could provide effective assistance is so
small that a presumption of prejudice is appropriate without inquiry into the actual
conduct of the trial.” Id. at 659-60.
These three categories represent “a narrow exception to Strickland‟s holding that a
defendant who asserts ineffective assistance of counsel must demonstrate not only that
his attorney‟s performance was deficient, but also that the deficiency prejudiced the
defense.” Florida v. Nixon, 543 U.S. 175, 190 (2004). Because it is presumed “that the
lawyer is competent to provide the guiding hand that the defendant needs, the burden
rests on the accused to demonstrate a constitutional violation.” Cronic, 466 U.S. at 658
(citation omitted). Therefore, the burden is on Dalbec to show that the facts of this case
warrant inclusion in the “narrow exception” to Strickland.
Dalbec‟s argument is a blend of two arguments. First, he argues that he was
denied the effective assistance of counsel when his trial counsel failed to submit a written
closing argument, a critical stage of trial, resulting in structural error. He then contends
that the error was exacerbated when the trial court adjudicated him guilty without having
the benefit of a closing argument from defense counsel.
We find these arguments
In Bell v. Cone, 535 U.S. 685, 696-97 (2002), the Supreme Court rejected the
defendant‟s argument that his ineffective-assistance-of-counsel claim involving, among
other things, the waiver of closing argument, should be evaluated under the second
exception set forth in Cronic. In doing so, the Court explained that the exception—that
defense counsel fails to subject the State‟s case to meaningful adversarial testing—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. Cone, 535 U.S. at 697.
We see no meaningful distinction to be made between what happened here and
situations like the one in Cone in which defense counsel is alleged to have improperly
waived closing argument. In Cone, the Court said that such waivers are “plainly of the
same ilk as other specific attorney errors we have held subject to Strickland‟s
performance and prejudice components,” and therefore do not involve structural error.
Cone, 535 U.S. at 697-98. Although we recognize that there is no evidence in this record
suggesting that defense counsel waived closing argument, we can find no reason to
approach this case any differently than if he had done so.
Moreover, on the facts presented here, defense counsel‟s failure to submit a
written closing argument does not implicate the justification for the rule announced in
Cronic—“circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” 466 U.S. at 658. The likelihood
of prejudice to the defendant when defense counsel fails, as here, to submit a written
closing argument is no different than the likelihood of prejudice to the defendant in
situations involving defense counsel‟s improper waiver of closing argument on the
record. In both instances, the omission, if error, results in the trier of fact not having a
closing argument from the defendant at the time the decision as to the defendant‟s guilt is
made. For us to presume prejudice on the facts presented here, while not to presume
prejudice in cases with facts similar to those in Cone, would be inconsistent, illogical,
and contrary to structural error jurisprudence.
Therefore, we conclude that defense
counsel‟s failure to submit a closing argument did not result in structural error.
For his argument that the trial court exacerbated defense counsel‟s error, Dalbec
relies on Herring v. New York, 422 U.S. 853 (1975), to support his claim that it was
structural error for the trial court to adjudicate him guilty without having had the benefit
of a written closing argument from defense counsel. In Herring, the trial court refused to
hear closing argument from either party, despite a request from the defendant‟s attorney.
Id. at 856. In Herring, unlike here, saying “I choose not to hear summations,” the court,
by its own actions, denied the defendant the assistance of counsel. Id. In this case,
unlike in Herring, there is nothing to suggest that the trial court did anything to prevent
or otherwise deny Dalbec the assistance of counsel. Given that distinction, Herring is not
More to the point, we do not view the trial court‟s actions as erroneous,
structurally or otherwise. An attorney‟s improper waiver of closing argument, as in
Cone, results in a trial court having to adjudicate the defendant‟s guilt without having
had the benefit of a closing argument from defense counsel. Importantly, the Court did
not hold that the adjudication of the defendant‟s guilt without the benefit of closing
argument was error, much less structural error. See Cone, 535 U.S. at 698. On the
minimal facts presented here—the trial court granting both parties the opportunity to
submit written closing arguments within an agreed-upon deadline and then adhering to
that deadline—we see no reason to conclude that the trial court‟s adjudication of
Dalbec‟s guilt without having the benefit of a closing argument was erroneous.
Therefore, Dalbec‟s structural error argument necessarily fails.
We reverse the court of appeals and remand this case to the court of appeals for
consideration of the unaddressed claims Dalbec asserted on appeal to the court of
The State asks that we rule on its claim that Dalbec cannot meet the Strickland test
for ineffective assistance of counsel and that any assertions of ineffectiveness under
Strickland would be barred in a postconviction proceeding under State v. Knaffla, 309
Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We decline to do so here because the
claim is not ripe, as Dalbec has not raised an ineffective-assistance-of-counsel claim in
this appeal and has not raised any such claim in a postconviction proceeding. Cf. State v.
Lindsey, 632 N.W.2d 652, 665 (Minn. 2001) (stating that defendant‟s claim that
(Footnote continued on next page.)
Reversed and remanded.
(Footnote continued from previous page.)
counsel‟s ineffectiveness deprived him of his right to appellate review of his conviction
was not ripe because the defendant did not assert “that he has ever attempted to file a
direct appeal”). Whether Knaffla bars an ineffectiveness claim under Strickland for
counsel‟s failure to submit a written closing argument is best addressed by the
postconviction court if at some point Dalbec files a petition for postconviction relief
asserting such a claim.