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STATE OF MINNESOTA IN COURT OF APPEALS A09-568 State of Minnesota, Respondent, vs. Daniel Brian Dalbec, Appellant. Filed May 4, 2010 Reversed and remanded Shumaker, Judge Wright County District Court File No. 86-CR-06-7221

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Tom Kelly, Wright County Attorney, Buffalo, Minnesota (for respondent) Julie Loftus Nelson, Frederic Bruno & Associates, Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Shumaker, Judge. SYLLABUS A criminal defense lawyers assistance is ineffective when the lawyer fails to "appear" for final argument by failing to submit a written summation, as agreed by the parties and approved by the judge; and such nonappearance constitutes structural error

when deficiencies in proof relating to an essential element of the charge might have been clarified through the guidance of a final argument on behalf of the defendant. OPINION SHUMAKER, Judge. On direct appeal from his conviction of criminal sexual conduct in the third degree, appellant argues that his attorneys failure to "appear" for final argument through the submission of a written summation after a bench trial, as agreed by the parties and approved by the district court, was ineffective assistance of counsel that, under the particular facts of this case, constituted structural error requiring reversal. We agree and are compelled to reverse the conviction and remand the matter for a new trial. FACTS We are asked to determine whether defense counsels failure to submit a written final argument--as he and the prosecutor agreed to do--resulted in reversible structural error in appellant Daniel Brian Dalbecs bench trial on the charge of criminal sexual conduct in the third degree. The dispositive facts are not materially in dispute. They show that S.J. awoke at 5:00 a.m. on July 1, 2006; engaged in rigorous exercise to train for a triathlon; went to some bars and a local festival later in the day; and, at about 9:00 p.m., attended a party at the home of her brothers friend, where Dalbec also lived. She had consumed some alcohol during her evening activities but she stopped drinking at 10:30 p.m.

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At some point, the police came to the house because neighbors had complained of noise from the party. Many guests then left but the homeowner invited others to stay overnight if they wished. S.J. was exhausted and decided to stay. Between midnight and 1:00 a.m., S.J. spoke with her mother by telephone and told her that she would be staying at the homeowners house. S.J. then began looking for a place to sleep and asked her friend J.P. if she wanted to find a place to sleep with her. J.P. indicated that she was not going to spend the night. S.J. testified that she then laid down on a couch and fell asleep almost immediately. She testified that she remembered nothing further until the next morning when she woke up in Dalbecs bedroom, lying next to him. She stated that she was experiencing vaginal pain upon awakening, and she noticed that her underwear was pulled down and her bra was pulled up. Dalbec was naked, but he denied that anything improper had happened. Testifying for the prosecution, J.P. recalled that, after she told S.J. that she was going home, S.J. approached Dalbec and asked him if she could sleep in his bedroom. He told her that she could and that he would sleep on the floor. Believing that she had been sexually assaulted by Dalbec, S.J. notified the police. The state eventually charged Dalbec with criminal sexual conduct in the third degree in violation of Minn. Stat.

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Minnesota Law