State of Minnesota, Respondent,

*Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0042

State of Minnesota,
Respondent,

vs.

David Anthony Tonce,
Appellant.

Filed December 24, 2018
Affirmed
Jesson, Judge

Beltrami County District Court
File No. 04-CR-16-3832

Lori Swanson, Attorney General, Peter Magnuson, Assistant Attor ney General, St. Paul,
Minnesota; and

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jess on, Presiding Judge; Bratvold, J udge; and John P.
Smith, Judge.*

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
After submitting his case to the district court for a trial on stipulated facts, appellant
David Tonce was convicted of second-degree criminal sexual cond uct for repeatedly
rubbing the genital area of his nine-year-old daughter. On app eal, Tonce argues that his
attorney completely failed to subject the prosecution’s case to meaningful adversarial
testing, and therefore committed structural error. Tonce also contends that the district court
committed error when it failed to consider his request to withdraw from the stipulated-facts
trial under a fair-and-just standard. We affirm.
FACTS
In November 2016, Tonce’s wife reported to Beltrami County poli ce that her
nine-year-old daughter, Child A, had been sexually molested by Tonce. Child A told her
mother that Tonce had rubbed the front of her genital area by r eaching his hand into her
overalls. Tonce’s wife told police that she then confronted To nce, who admitted that he
had sexually touched Child A’s genital area because he wanted her to experience the same
gratification he received from masturbation. When interviewed by law enforcement, Tonce
told investigators that Child A “ doesn’t tell stories,” and wha tever she said about him
touching her sexually was “probably close to the truth.” Tonce also told investigators that
he had touched Child A’s genital area on at least three prior occasions. The state charged

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Tonce with second-degree criminal sexual conduct1 based on Child A’s claim and Tonce’s
confession.
In August 2017, Tonce agreed to submit his charge to the distri ct court for a
stipulated-facts trial pursuant to Minnesota Rules of Criminal Procedure 26.01,
subdivision 3. Tonce waived his jury trial rights on the recor d and agreed to stipulated
facts in writing, which were then submitted to the district cou rt to consider and issue a
verdict.2 A t t h e t i m e o f T o n c e ’ s w a i v e r , all parties were aware that th e state was
considering amending its complaint to include a charge of first -degree criminal sexual
conduct based on the allegation that Tonce digitally penetrated his daughter. Tonce does
not claim that his waiver of jury trial rights was invalid or t hat the agreement was not in
writing or otherwise on the record.
On the morning that the district court was to issue its verdict , Tonce requested to
withdraw his consent to a stipulated-facts trial. The district court denied this request and
issued a verdict of guilty. Tonc e was sentenced to 90 months i n prison, ten years of
conditional release, and predatory offender status for life.
Tonce appeals.

1 In violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2016).
2 Under Minn. R. Crim. P. 26.01, subd. 3, the defendant must waive his right to a jury trial
and personally waive the right (1) to testify at trial; (2) to have the prosecution witnesses
testify in open court in the def endant’s presence; (3) to quest ion those prosecution
witnesses; and (4) to require any favorable witnesses to testif y for the defense in court.
Minn. R. Crim. P. 26.01, subd. 3(b). The parties’ agreement an d the waiver must be in
writing or placed on the record. Id., subd. 3(c).

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D E C I S I O N
Tonce raises two issues on appeal: (I) whether Tonce’s trial c ounsel committed
structural error, depriving Tonce of his Sixth Amendment right to the effective assistance
of counsel, and (II) whether the district court erred in failin g to consider Tonce’s request
to withdraw from a stipulated-facts trial under a fair-and-just standard. We address each
issue in turn.
I. Counsel’s trial conduct did not constitute structural error.
Tonce has a Sixth Amendment right to reasonably effective assi stance of counsel
under the United States Constitution, which he claims was denied by counsel’s conduct at
trial. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). Ineffective-assistance-of-counsel claims, such as those raised by Tonce here,
are generally analyzed as trial errors, but some errors involve such a complete failure of
counsel that the conduct must be analyzed as structural error, which does not require a
showing of prejudice. State v. Dalbec , 800 N.W.2d 624, 627 (Minn. 2011). Structural
error occurs when counsel entir ely fails to subject the prosecu tion’s case to meaningful
adversarial testing, because there has been a denial of Sixth Amendment rights that makes
the adversary process itself presumptively unreliable. Dereje v. State , 837 N.W.2d 714,
722 (Minn. 2013) (quotation omitte d ) . T h e p a r t y c l a i m i n g t h a t a counsel-related error
amounted to structural error has the burden of showing that the facts of the case warrant
inclusion in that narrow exception to Strickland. Id.
Here, the conduct of Tonce’s counsel during the stipulated-fact s trial was proper.
Counsel submitted a written stipulation for the district court to consider that included,

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among other things, Tonce’s statements to police that his daugh ter “doesn’t tell stories,”
and that whatever she said about Tonce touching her sexually wa s “probably close to the
truth.” Rule 26.01, subdivision 3, allows for a stipulated-fac ts trial. Tonce agreed to the
process during a thorough waiver of his trial rights, which was made on the record and in
writing.
One exchange between Tonce and the district court during Tonce’s extensive waiver
of trial rights demonstrates that the stipulated-facts trial was clearly explained to him before
Tonce agreed to the process. The questioning occurred as follows:
THE COURT: If we—let me just make sure that you
do understand. If we go forward using this procedure, I will
read—Mr. Tonce, I will read these four pages very carefully
and consider what they say. A nd I will use everything that is
written here in these four pages to determine whether you are
guilty beyond a reasonable doubt of the charge of Criminal
Sexual Conduct in the Second Degree, or whether these facts
do not prove you guilty beyond a reasonable doubt. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: There will be nothing more that I will
consider, other than what is w ritten here. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: And is it your desire that I determine
your guilt or innocence using what is written on these four
pages?
THE DEFENDANT: Yes, sir.

Tonce’s counsel clearly complied with the requirements of rule 26.01, subdivision
3. Equally clear was Tonce’s understanding of the parameters o f a stipulated-facts trial.
Given counsel’s compliance with the requirements of a stipulate d-facts trial and the
extensive waiver of Tonce’s trial rights, we discern no structural error.

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But Tonce relies on Dereje to support his claim that counsel committed structural
error because the stipulated facts in his case did not include an alternative version of events,
a claim of innocence, or any evidence from which the district court could have found him
not guilty. In Dereje, the parties agreed to a stipulated-facts trial but submitted two
versions of events to the dist rict court. 837 N.W.2d at 719. The district court found the
defendant guilty after accepting the victim’s version of events. Id. The supreme court took
issue with this process and held that “the submission of documentary evidence presenting
contradictory versions of events cannot constitute a valid tria l on stipulated facts.” Id. at
721.
Tonce’s reliance on Dereje is misplaced. First, unlike in Dereje, only one set of
facts was presented here. And stipulated-facts trials are just that: a stipulation to facts. If
there were two alternative sets of facts for the district court to choose between, that would
be a bench trial under rule 26.01, subdivision 2, not a stipulated-facts trial. See id. at 721;
Minn. R. Crim. P. 26.01, subd. 2. Further, Tonce’s decision to proceed with a
stipulated-facts trial appears to b e a n “ i n f o r m e d s t r a t e g i c c h oice” made to avoid more
serious charges. See Dereje, 837 N.W.2d at 723 n.2. And this decision was made after an
extensive and voluntary waiver o f trial rights. Finally, we no te that Tonce has never
identified alternative facts that he would have presented at a bench trial. We conclude that
Dereje does not support Tonce’s arguments.
Tonce further asserts that the lack of a closing argument is e vidence of structural
error. But the supreme court in Dereje specifically rejected an identical claim. Id. a t
722-23. As the supreme court c oncluded, waiver of closing argu ment is insufficient to

7
establish structural error, especially when both sides waive the right, as was the case here.
Id.
Tonce’s trial counsel acted in a manner consistent with the re quirements of a
stipulated-facts trial and the wishes of his client. Tonce has failed to meet his heavy burden
of proving a denial of Sixth Amendment rights that makes the ad versary process itself
presumptively unreliable. We therefore conclude that counsel’s conduct did not constitute
structural error.
II. The fair-and-just standard is not applicable to Tonce’s req uest to withdraw
from a stipulated-facts trial.

Tonce sought to withdraw his consent to the stipulated-facts trial shortly before the
district court was to announce its verdict. The district court denied Tonce’s request,
pointing to his knowing, intelligent, and voluntary waiver of trial rights. But Tonce argues
that his stipulation was essentially a guilty plea, and therefo re the district court erred by
failing to address whether it would be fair and just to let him withdraw his consent after
submission of the evidence.3
The interpretation and application of a procedural rule present s a question of law
that we review de novo. Crowley v. Meyer, 897 N.W.2d 288, 292 (Minn. 2017); Clark v.
Clark, 642 N.W.2d 459, 464 (Minn. App. 2002). And our precedent cle arly answers this
question of law: a stipulated-facts trial under Minnesota Rules of Criminal Procedure 26.01

3 A district court has discretion to allow a defendant to withdraw a plea before sentencing
“if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. But Minnesota Rules of
Criminal Procedure 15.05, subdivision 2, governs the withdrawal of guilty pleas before
sentencing, not stipulated-facts trials. Id.

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does not involve a guilty plea, and it does not serve as the functional equivalent of a guilty
plea. State v. Johnson, 689 N.W.2d 247, 252-53 (Minn. App. 2004), review denied (Minn.
Jan. 20, 2005). While Tonce argues that the stipulated facts in his case were so one-sided
that they were equivalent to providing a factual basis for a gu ilty plea, the strength of the
state’s evidence does not invalidate a stipulated-facts trial o r convert the proceeding to a
guilty plea.
Because Tonce concedes that his waiver of trial rights was knowing, intelligent, and
voluntary, and because Tonce did n ot move to withdraw from the stipulated-facts trial
process prior to the submission of evidence, there is no legal basis to remand his case to
the district court for the purpose of making the determination Tonce requests. See United
States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 1353 (1977) (holding
that jeopardy attaches when the judge begins to receive evidence).
Affirmed.