Dereje v. State

837 N.W.2d 714, 2013 WL 5551127, 2013 Minn. LEXIS 407

• Court: Supreme Court of Minnesota
• Decided: October 9, 2013
• Docket: No. A11-1147
• Status: Published

Opinions

OPINION

ANDERSON, Justice.

Respondent Tsige Abebaw Dereje was convicted of criminal sexual conduct in the fifth degree, Minn.Stat. § 609.3451, subd. 1(1) (2012), stemming from an incident in which he groped the victim, S.J., while she was a passenger in his taxi. Dereje and the prosecutor agreed to conduct a trial on stipulated facts pursuant to Minn. R.Crim. P. 26.01, subd. 3, and Dereje waived all trial rights. The parties jointly submitted the complaint and police reports containing both Dereje’s and the victim’s versions of events to the district court, which found Dereje guilty. On postconviction review, Dereje now argues that he is entitled to a new trial because (1) the procedure used to convict him was not a trial on stipulated facts pursuant to Minn. R.Crim. P. 26.01, subd. 3; and (2) he received ineffective assistance of counsel. Because we conclude that the procedures used to convict him complied with the requirements of Minn. R.Crim. P. 26.01, subd. 2, and that he received effective assistance of counsel, we reverse the decision of the court of appeals and remand to the district court to reinstate Dereje’s judgment of conviction and sentence.

On March 30, 2008, Dereje, a cab driver, picked up S.J. from a bus shelter at the intersection of Broadway Avenue and Lyn-dale Avenue in Minneapolis. S.J. asked Dereje to drive her to St. Paul, and he agreed. He instead drove her to his apartment, got out of the car, and left her in the cab parked outside. After he left, S.J. got out of the cab, found someone to assist her in calling 911, reported that she had been sexually assaulted and was hiding from her attacker, and met police at the scene when they arrived. Shortly thereafter, police found Dereje driving up and down the street in a white van, and S.J. identified him as her attacker. Beyond these facts, the accounts of Dereje and S.J. share little in common.

Dereje claimed that, after buying groceries at a nearby supermarket, he saw S.J. at a bus shelter and pulled his taxi up to her location after she made eye contact with him. S.J. told him that she needed a ride to St. Paul. Dereje agreed, but told her that he would need to stop at his apartment on the way to drop off the groceries with his wife, assuring S.J. that he would not charge her for that portion of the ride. While he was inside his apartment, S.J. disappeared. Thinking she intended to skip out on the fare, Dereje went looking for her in his personal vehicle. He insisted that he had no sexual contact with S.J., and that the condoms found in his pocket were intended for sexual relations with his wife.

S.J.’s account, which was accepted by the district court, was very different. According to S.J., she asked Dereje to give her a ride to downtown Minneapolis so she could take a bus to downtown St. Paul. Once the car was underway, however, De-reje told S.J. that the ride would be free and he would give her $150 if she would spend the night with him. He also kissed her hand and reached into the back seat to rub her vaginal area over her clothes, despite repeated demands that he stop and let her out of the car. S.J. called 911 several times from the back of the cab— which was confirmed by phone records— but had trouble maintaining a connection because her phone’s battery kept falling out. After stopping outside his apartment, Dereje told S.J. he was going to get money and his personal minivan, and left her locked in the back seat of the cab. She was able to escape, contact police, and meet them when they arrived at the scene. The officers observed that S.J. was shaking and crying when they arrived.

On April 1, 2008, Dereje was charged with criminal sexual conduct in the fourth degree under Minn.Stat. § 609.345, subd. 1(c) (2012) — a felony — and criminal sexual conduct in the fifth degree under Minn. Stat. § 609.3451, subd. 1(1), which is a gross misdemeanor. On September 25, 2008, Dereje made a number of calls to S.J., during which he asked her to drop the charges against him and threatened to kill himself if she refused. Shortly thereafter, Dereje was found incompetent to proceed to trial, and was committed. On March 12, 2009, he was deemed competent to stand trial, and the charges against him, including felony witness tampering stemming from his calls to S.J., were reinstated.

At the March 12 hearing, Dereje, with the help of an Amharic interpreter, pleaded guilty to felony witness tampering and also waived his trial rights regarding the sexual conduct charges. The district court accepted his waiver of trial rights for all of the charges. By agreement, the parties submitted the complaint and police reports to the court for a stipulated-facts trial pursuant to Minn. R.Crim. P. 26.01, subd. 3. The court issued an order accepting S.J.’s version of events and finding Dereje guilty of criminal sexual conduct in the fifth degree. The State then dropped the fourth-degree criminal sexual conduct charge.

The district court agreed to stay imposition of the witness-tampering sentence for 3 years, placed Dereje on probation, and prohibited any contact with S.J. It sentenced him to 360 days on the sexual conduct charge, stayed for 2 years, and required him to register as a sex offender. While the court did not explain the reasoning for its 360-day sentence, Dereje’s counsel informed the court prior to sentencing that any sentence of 365 days or more would expose Dereje to deportation, and the record does not suggest any other reason for the court to impose a sentence just short of 1 year.

Although Dereje did not file a direct appeal on either charge, he filed a petition for postconviction relief on January 31, 2011. His petition alleged that (1) the procedure used was not a valid stipulated-facts trial under the Minnesota Rules of Criminal Procedure; (2) he received ineffective assistance of counsel; and (3) his waiver of trial rights was invalid. The district court denied Dereje’s petition by order dated May 6, 2011.

Dereje appealed the district court’s denial of his petition, again arguing that the procedure used was not a valid trial on stipulated facts and that his counsel was ineffective. However, he did not then, and does not now, contest the validity of his waiver of trial rights. The court of appeals held that a trial based on a body of evidence including disputed facts was not a stipulated-facts trial under Minn. R.Crim. P. 26.01, subd. 3, but that the error was harmless because Dereje’s waiver of trial rights converted the proceeding into a valid bench trial based on stipulated evidence. Dereje v. State, 812 N.W.2d 205, 209-11 (Minn.App.2012). But, it also held that Dereje received ineffective assistance of counsel because his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing, which was structural error. Id. at 211. It therefore reversed his conviction for fifth-degree criminal sexual conduct, and remanded for a new trial. Id. at 212.

The State now appeals, arguing that there was a valid trial on stipulated facts, and that Dereje received effective assistance of counsel.

I.

We first examine whether the district court conducted a valid trial on stipulated facts under Minn. R.Crim. P. 26.01, subd. 3. We conclude that it did not.

The interpretation of the rules of criminal procedure is a question of law that we review de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). "We interpret court rules in accordance with the rules of grammar and give words and phrases their common and approved usage." State v. Hohenwald, 815 N.W.2d 823, 829 (Minn.2012). "When considering the plain and ordinary meaning of words or phrases, we have considered dictionary definitions." State v. Heiges, 806 N.W.2d 1, 15 (Minn.2011). Additionally, when different words are used in the same context, we assume that the words have different meanings. See League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 685 n. 29 (Minn.2012) (Anderson, Paul H., J., dissenting). Keeping these principles in mind, we consider the language of Minn. R.Crim. P. 26.01, subd. 3.

Minnesota Rule of Criminal Procedure 26.01, subdivision 3(a), states:

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) testi'y 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.

The State argues that Minn. R.Crim. P. 26.01, subd. 3, permits a defendant to stipulate to a body of evidence containing contrary versions of events, and that such a stipulation does not require agreement as to the accuracy of the facts reported, but merely to the fact that the evidence presented was reported. This interpretation is not consistent with the plain language of the rule. A "stipulation" is defined as "{aJ voluntary agreement between opposing parties concerning some relevant point; esp., an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding." Black's Law Dictionary 1550 (9th ed.2009). A "fact" is "[s]omething that actually exists; ... [a]n actual or alleged event or circumstance." Id. at 669. A stipulated fact is thus agreement between opposing parties regarding the actual event or circumstance. While the parties here agreed on the material to be submitted to the trial court, they did not agree about the actual events that occurred, including, most importantly, whether Dereje touched S.J. inappropriately, or at all.

The State's interpretation is also undermined by subdivision 4 of the Rule, which declares that the "defendant must stipulate to the prosecution's evidence in a trial to the court." Minn. R.Crim. P. 26.01, subd. 4(e) (emphasis added). The United States Supreme Court has stated that when a court encounters "certain language in one part of the [rule] and different language in another, the court assumes different meanings were intended." Sosa v. Alvarez-Machain, 542 U.S. 692, 711 a. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (internal quotation marks omitted). The use of "evidence" in subdivision 4 and "facts" in subdivision 3 therefore indicates that the two terms have different meanings.

Our conclusion that the procedure in Dereje’s case was not a trial on stipulated facts is further bolstered by our observation that the district court’s order contained an explicit, nine-paragraph “Findings of Fact” section. The court did not simply apply the law to the parties’ stipulated facts; rather, the findings adopted S.J.’s version of the events and circumstances and, necessarily, rejected Dereje’s version. Such material factual determinations are simply antithetical to the plain meaning of a trial on stipulated facts, and are more consistent with what we conclude actually occurred here — a bench trial pursuant to Minn. R.Crim. P. 26.01, subd. 2.¹

We hold that the submission of documentary evidence presenting contradictory versions of events cannot constitute a valid trial on stipulated facts under Minn. R.Crim. P. 26.01, subd. 3. But because the trial here met the requirements for a bench trial in Minn. R.Crim. P. 26.01, subd. 2, Dereje validly waived his jury-trial rights, and the district court made detailed and thorough findings of fact drawn from the stipulated evidence, we reject the demand for a new trial, concluding that De-reje’s bench trial was not procedurally defective.

II.

We next turn to Dereje’s claim that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. A postconviction court’s conclusion that a defendant received ineffective assistance of counsel involves a mixed question of law and fact that is reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Opsahl v. State, 677 N.W.2d 414, 420 (Minn.2004). “Ineffective-assistanee-of-counsel claims are generally analyzed as trial errors under Strickland v. Washington.” State v. Dalbec, 800 N.W.2d 624, 627 (Minn.2011).

To prevail on [a claim under Strickland], an appellant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Thus, we have said that under the prejudice prong, a “defendant must show that counsel’s errors ‘actually’ had an adverse effect in that but for the errors the result of the proceeding probably would have been different.” The reviewing court considers the totality of the evidence before the judge or jury in making this determination. We need not address both the performance and prejudice prongs if one is determinative.

State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003) (citations omitted) (quoting State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998); Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Gates v. State, 398 N.W.2d 558, 562 (Minn.1987)).

“Certain counsel-related errors, however, may be structural errors, which do not require a showing of prejudice.” Dalbec, 800 N.W.2d at 627. “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.” Id. (alteration in the original) (internal quotation marks omitted). A structural error occurs when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” because in such a case “there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (emphasis added). In other words, a structural error occurs, and the Sixth Amendment guarantee is violated, when the “process loses its character as a confrontation between adversaries.” Id. at 656-57, 104 S.Ct. 2039. On the other hand, when a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred, and therefore the trial mechanism is not structurally defective. Circumstances calling for a finding of structural error 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, 125 S.Ct. 551, 160 L.Ed.2d 565 (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.’ ” Dalbec, 800 N.W.2d at 628 (quoting Cronic, 466 U.S. at 658, 104 S.Ct. 2039). “Therefore, the burden is on [Dereje] to show that the facts of this case warrant inclusion in the ‘narrow exception’ to Strickland.” Id.

Dereje argues that his counsel entirely failed “to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. We disagree. We have held that the “meaningful adversarial testing” exception set forth in Cronic “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.” Dalbec, 800 N.W.2d at 628 (quoting Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). Bell involved a defendant who argued that his counsel’s failure to make a closing argument at sentencing after the prosecution introduced evidence and gave a closing statement constituted structural error because counsel failed to subject the prosecution’s case to meaningful adversarial testing. 535 U.S. at 691-92, 696-97, 122 S.Ct. 1843. The Supreme Court rejected the defendant’s claim, reasoning that “[t]he aspects of counsel’s performance challenged by [the defendant] ... are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components.” Id. at 697-98. Similarly, in Dal-bec, a defendant argued that structural error occurred when his counsel failed to submit a written closing argument after a two-day bench trial. 800 N.W.2d at 626. We also rejected this claim, reasoning that the circumstances were not meaningfully different from those in Bell. Id. at 628-29.

Like those challenged in Bell and Dal-bec, the aspects of counsel’s performance challenged by Dereje are plainly of the same ilk as other specific attorney errors we have held subject to Strickland ⅛ performance and prejudice components. Additionally, Dereje was not put at a disadvantage by counsel’s conduct because, unlike in Dalbec and Bell, the prosecutor also waived a closing argument.

The court of appeals reasoned that this case could be distinguished from Dalbec because “in Dalbec, the defendant also received a two-day bench trial, during which trial counsel tested the state’s evidence.” Dereje, 812 N.W.2d at 211. But by ensuring that his client’s version of events was included in the documentation presented to the court, Dereje’s counsel did challenge the State’s case. Dereje’s statement contained an alternate version of the events that called into question the statements of S.J. Dereje repeatedly stated that S.J. was not credible and “had made up the entire story,” and he presented S.J.’s desire to avoid paying cab fare as a possible motive. The statement also notes evidence consistent with Dereje’s version of the events, including the presence of groceries in De-reje’s car. Dereje’s statement contains sufficient evidence that the district court could have found him not guilty and was, therefore, a meaningful challenge to the State’s case.

And as to the absence of an argument by defense counsel, the format for the presentation of evidence was part of a negotiated plan, which Dereje consented to, whereby Dereje’s counsel secured a more favorable sentence for his client. While we acknowledge that the negotiations between the attorneys in this case are not detailed in the record, we note that the State not only agreed to request a stay of Dereje’s sentence for felony witness tampering, but also dropped the felony criminal sexual conduct charge.² The district court also noted at the sentencing hearing that, as part of the agreement, Dereje would be released immediately after sentencing, something that Dereje had repeatedly stated was a high priority for him because of his desire to reunite with his children. Counsel also timely argued to the court that his client could be subject to deportation if he received a sentence of 865 days or more, and Dereje subsequently received a sentence of 360 days, consistent with counsel’s request. Based on this record, we cannot conclude that the defense counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing.³

For all of these reasons, we conclude that Dereje did not receive ineffective assistance of counsel. Because his bench trial was consistent with the provisions of Minn. R.Crim. P. 26.01, subd. 2, and he received effective assistance of counsel, we reverse the court of appeals and reinstate Dereje’s judgment of conviction and sentence.

Reversed.

LILLEHAUG, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

1 . The procedural requirements for a trial without a jury under Minn. R.Crim. P. 26.01, subd. 2, are as follows:

(a) In a case tried without a jury, the court, within 7 days after the completion of the trial, must make a general finding of guilty; not guilty; or if the applicable pleas have been made, a general finding of not guilty by reason of mental illness or deficiency, double jeopardy, or that Minn.Stat. § 609.035 bars the prosecution.

(b) The court, within 7 days after making its general finding in felony and gross misdemeanor cases, must in addition make findings in writing of the essential facts.

(c) In misdemeanor and petty misdemean- or cases, findings must be made within 7 days after the defendant has filed a notice of appeal.

(d) An opinion or memorandum of decision filed by the court satisfies the requirement to find the essential facts if they appear in the opinion or memorandum.

(e) If the court omits a finding on any issue of fact essential to sustain the general finding, it must be deemed to have made a finding consistent with the general finding.

2 . Given that the United States Supreme Court has held that counsel’s performance can be ineffective during plea bargaining, see Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 1388, 182 L.Ed.2d 398 (2012), it must follow that pretrial negotiations and arrangements are meaningful in considering whether counsel's overall performance deprived a defendant of a fair trial. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (”[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.”). We also note that Dereje knowingly waived his trial rights and agreed to the procedures employed by counsel during his trial. "Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant....” Id. at 691, 104 S.Ct. 2052. While it is certainly possible to criticize counsel for his failure to subject S.J. to cross-examination, that choice was Dereje's to make. Counsel’s performance does not fall below an objective standard of reasonableness simply because the wisdom of the defendant's choices was debatable.

3 . Justice Page argues that Dereje's waiver of trial rights was invalid because it was made under the belief that the court would be conducting a subdivision 3 trial on stipulated facts rather than a bench trial under subdivision 2. To grant a new trial on such a basis would be to elevate form over substance. De-reje had the option of a subdivision 2 trial available to him, and he chose to forgo his right to confront and cross-examine witnesses in favor of an agreement in which the State dropped a felony charge and agreed to a favorable sentencing request on his behalf — a sentence ultimately imposed by the district court. No one contests the fact that the State could offer the same inducements in exchange for the same waivers while operating under a correct view of Rule 26.01. The assumption underlying the dissent appears to be that Dereje would refuse such an offer and exercise his trial rights, but there is no need for such speculation — we know Dereje would have accepted that deal because he did, in fact, accept that deal.