State of MN v Don Mashak Appellate RCAPForm 133 Statement of Case 14-1425

FORM 133

FORM 133. STATEMENT OF THE CASE

STATE OF MINNESOTA

IN COURT OF APPEALSCASE TITLE:

Don Mashak

Appellant,

STATEMENT OF THE CASE OF APPELLANT

TRIAL COURT CASE NUMBER: 19HA-CR-14-1019 vs.

APPELLATE COURT CASE NUMBER: A14-1425State of MinnesotaRespondent.

1. Dakota County Courts and Judge King and Judge Ausphaug.

2. Jurisdictional statement

(A) Appeal from district court.

Statute, rule or other authority authorizing appeal:

Appellate Rule 26.02 Sub 3 Discretionary Review,

MN RCP 31.02 Plain Error,

1120 Extraordinary Writ

MN RCP 59/60 (Mistake/Error/Fraud)

Date of entry of judgment or date of service of notice of filing of order from which appeal is taken:

Appellant has received no official notice. Dakota County Courts refuse to put anything regarding this

in writing.On June 11, 2014, during a hearing, Defendant expressed concern to Judge Ausphaug that video evidence was being destroyed. Defendant also expressed concern that the Court Window would not give him a Subpoena without a Judges permission. Judge Ausphaug said she was aware of no such rule and asked Prosecutor Fluegel who also agreed their was no such rule. Judge Asphaug appeared to warn Prosecutor Fluegel to immediately produce the evidence Defendant feared destroyed. Prosecutor Fluegel agreed but said he could not do it yet that day. During this same hearing, Judge Asphaug ruled that this matter should be heard before a Judge from another County. This because all Dakota County Judges had a familiar relationship with the Dakota County Bailiffs in question. JUDGE AUSPHAUG SAID SHE WOULD NOT RULE ON ANY OF THE PENDING MOTIONS TO MAKE SURE THEY WERE HEARD BY AN IMPARTIAL JUDGE FROM ANOTHER COUNTY.

At the July 23, 2014 hearing, Judge King immediately granted a continuance upon finding Defendant qualified for a Public Defender. While the notice was being drafted, Defendant asked Judge King which County she was from. Judge King replied, You are in Dakota County Defendant directed Judge King to the fact that Judge Ausphaug ordered this matter was to be heard by a Judge from another County. (Ergo, Appellant found out the about the error by accident and not by pro-active notice from the court) Judge King said their was no such order in the file. Judge King cut Defendant off when Defendant turned to Prosecutor Fluegel and asked him to confirm that Judge Ausphaug ordered the matter to be heard by a Judge from a different County. Judge King said we are off the record and refused further conversation. Defendant left without pressing the issue for fear he would be arrested again on some other trumped up charges if he tried to press the matter further. (It occurred to Appellant at the time that if there were not a criminal conspiracy afoot, Judge King would have immediately reconciled this matter by immediately getting Prosecutor Fluegels input)On July 25, 2014, Appellant faxed a letter requesting Judge Ausphaug reduce the order to writing in Place it in the Court File. (Exhibit 1)On August 4, 2014 Appellant filed this appeal.On or about August 5, 2014, Appellant Contacted Judge Ausphaugs Law Clerk, Megan L.

Megan L. said there had been a clerical error. Megan L indicated that an email from someone with from the Courts had been received shortly after the hearing. Megan L informed Appellant that the error would be corrected administratively, not by Court Order. Appellant informed Megan L, that in light of all the activities which tended to demonstrate that a criminal conspiracy to Obstruct Justice was occurring, Appellant could not just take her verbal word that the error was being corrected.

Despite this the matter continues to be set to be heard in Dakota County. Further, it would be a simple matter of the Court, the Public Defender and/or Prosecutor Fluegel to send written confirmation that this matter was going to be heard by a Judge from another County.Combine this with the destruction of video evidence that Appellant requested be saved for Court and verbal and written assurance from county officials that it would, as well as the fabrication of evidence and this Appellant has reached the conclusion that there is a criminal conspiracy to Obstruct Justice and Fix the outcome of this case. And making sure the matter is heard by a Dakota County Judge is an element of the criminal conspiracy. If there were no criminal conspiracy to ignore or void Judge Ausphaugs order from the bench, Definitive communication in writing directly addressing this matter would have been sent directly to Appellant. The question relevant to when any time limit began to toll hinges on what is a reasonable period of time for the Appellant to wait to get said written communication.

It is clear that Appellant wasnt even aware there was a concern until July 23, 2014. And this Appeal was initiated 8/4/2014.

Authority fixing time limit for filing notice of appeal (specify applicable rule or statute):

104.01 Sub 2 E and F

MN RCP 59 and 60 provide for statutes of limitations of a year or more.

Date of filing any motion that tolls appeal time: As previously stated, Appellant was not even aware there was an issue until July 23, 2014. Appellant sent a letter to Judge Ausphaug asking her to correct the deficiency on July 25, 2014 (Exhibit 1)

Date of filing of order deciding tolling motion and date of service of notice of filing:

Appellants best guess are the actions of Judge King on July 23, 2014.

(B) Certiorari appeal.

Statute, rule or other authority authorizing certiorari appeal:

Authority fixing time limit for obtaining certiorari review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

(C) Other appellate proceedings.

Statute, rule or other authority authorizing appellate proceeding:


MN RCrimP 31.02 Plain Error,


MN RCivP 59/60 (Mistake/Error/Fraud)

Authority fixing time limit for appellate review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

104.01 Sub 2 E and F

MN RCP 59 and 60 provide for statutes of limitations of a year or more

(D)Finality of order or judgment.

Does the judgment or order to be reviewed dispose of all claims by and against all parties, including attorney fees? Yes ( ) No (x)

If no:

Did the district court order entry of a final partial judgment for immediate appeal pursuant to MINN.R.CIV.APP.P.104.01? Yes ( ) No (X) or

If yes, provide date of order:

If no, is the order or judgment appealed from reviewable under any exception to the finality rule? Yes(X) No ( )

If yes, cite rule, statute, or other authority authorizing appeal:




MN RCivP 59/60 (Mistake/Error/Fraud)

(E) Criminal only:

Has a sentence been imposed or imposition of sentence stayed? Yes ( ) No (X)

If no, cite statute or rule authorizing interlocutory appeal:




MN RCivP 59/60 (Mistake/Error/Fraud)3. State type of litigation and designate any statutes at issue.

Misdemeanor Disorderly Conduct Malicous Prosectuion, Abuse of Process, Conspiracy to Obstruct Justice, Infringement of First Amendment Free Speech, Free Press and Right to Petition the Government for Redress of Grievances without fear of punishment or reprisal.

4. Brief description of claims, defenses, issues litigated and result below. For criminal cases, specify whether conviction was for a misdemeanor, gross misdemeanor, or felony offense.There are no recognizable issues in the courts jurisdiction. Before Appellant even contemplates pleading not guilty, The Court and Prosecutor need to establish that there even are recognizable issues that come under this Courts jurisdiction. And before even that, we need a hearing on a motion for change of venue as there appears to be a conspiracy to obstruct justice that originates with the Dakota County Judiciary. A conspiracy to Obstruct Justice that includes fabricating evidence and destroying video evidence Appellant long ago asked for and was verbally and in writing assured had been secured.

Judge Ausphaug ordered from the bench that this matter be heard by a Judge from another County for purposes of the appearance of impartiality. And now there appears to be a full out criminal conspiracy to ignore and/or void that ruling.

This is a retaliatory misdemeanor disorderly conduct. Appellant attended the matter of Sperling v Sperling to hear testimony alleging Mr. Sperling was getting preferential treat because of his relationship with Local Law Enforcement. Specifically Mrs. Sperling alleged that the Local Law Enforcement were complicit in the local drug trade and that Mr. Sperling was the major drug supplier.

Everything that has occurred stinks of Obstruction of Justice and Conspiracy to Obstruct Justice. The authorities have fabricated false evidence and destroyed all the video tapes Appellant repeatedly demanded be preserved. At the Arraignment, Prosecutor Fluegel suggested Appellant could just leave and he would tell the Court what transpired. Appellant stayed. In the Course of Appellants interaction with Judge Ausphaug, Judge Ausphaug of her own volition recognized that the matter should be heard by a judge outside of Dakota County for the sake of the appearance of impartiality. At a second hearing, Judge King said there was no Court Order to that effect in the file. Judge King cut Appellant off when Appellant asked Prosecutor Fluegel to confirm that was Judge Ausphaugs order from the bench. Fearing more bogus charges, Appellant did not feel it would be prudent to press the issue then and there. Appellant sent a letter to Judge Ausphaug and got no written reply. Shortly after Appellant filed this Appeal, Appellant called Judge Ausphaugs legal clerk. The assistant tried to explain that it was a clerical error being handled administratively. Appellant specifically said to Judge Ausphaugs clerk that the fabrication of evidence and destruction of the video made a written order necessary. Appellant never received a written notice to that effect. Defendant began making arrangements with Judge Ausphaugs Court Reporter to get the transcript. Since then, Appellant has been granted a Public Defender that said he knows nothing about appeals. Hence, Appellant had to prepare these documents himself. Though the notice of Deficiency from the Appellate Court was dated August 20, 2014, Appellant did not receive it until August 25, 2014. The original Appeal by this Appellant was mailed on or about 8/4/2014. Appellant is concerned that this delay was deliberate attempt to cause him to miss some deadline unknown to him.5. List specific issues proposed to be raised on appeal.

That Judge Ausphaugs Order from the bench that a Judge from another county here this matter be recognized and this matter be heard in the County of Ramsey or Hennepin County as a Midpoint for travel of both parties and any other actions the Court finds just, fair and equitable.6. Related appeals.

NONE KNOWNList all prior or pending appeals arising from the same action as this appeal. If none, so state.

7. Contents of record.

Is a transcript necessary to review the issues on appeal? Yes ( X) No ( )

If yes, full ( X) or partial ( ) transcript?

Has the transcript already been delivered to the parties and filed with the trial court administrator? Yes()No (X)

If not, has it been ordered from the court reporter? Yes (X ) No ( ) Again, there Appellant has been given the run around on IFP status and was not told until August 30, 2014 that having a Public Offender meant the transcript would be paid for under IFP status as well as the filing fees. Appellant is attaching a copy of the letter of assignment of Public Defender.

If a transcript is unavailable, is a statement of the proceedings under Rule 110.03 necessary? Yes ( ) No( )

In lieu of the record as defined in Rule 110.01, have the parties agreed to prepare a statement of the record pursuant to Rule 110.04? Yes ( ) No ( )

8. Is oral argument requested? Yes (X) No ( )

If so, is argument requested at a location other than that provided in Rule 134.09, subd. 2? Yes ( ) No ( )

If yes, state where argument is requested:

9. Identify the type of brief to be filed.

Informal brief under Rule 128.01, subd. 1 (must be accompanied by motion to accept unless submitted by claimant for reemployment benefits). (X)

Trial memoranda, supplemented by a short letter argument, under Rule 128.01, subd. 2. ( )

10. Names, addresses, zip codes and telephone numbers of attorney for appellant and respondent.

Prosecutor Dan Fluegel

999 Westview Dr St 1

Hastings, MN 55303-2432

Telephone No:651-438-9777

At the time this Appeal was filed, Appellant had not yet received notice of a Public Defender being appointed to represent him. Further Public Defender Alexander Rogosheske says he has no knowledge of the Appellate process and has not assisted iin this appeal.

________________________________________________

SIGNATURE

OR, IF NOT REPRESENTED BY COUNSEL:

Don MashakRt 1 Box 231

Albertville MN 55301

NO PHONE DonMashak@/Yahoo.com

________________________________________________

SIGNATURE (OF APPELLANT) (OF RESPONDENT)

Dated:9/2/2014(The Statement of Case is not a jurisdictional document, but it is important to the proper and efficient processing of the appeal by the appellate courts. The "jurisdictional statement" section is intended to provide sufficient information for the appellate court to easily determine whether the order or judgment is appealable and if the appeal is timely. The nature of the proceedings below and the notice of appeal determine the jurisdiction of the appellate court. The sections requesting information about the issues litigated in the lower court or tribunal, and the issues proposed to be raised on appeal are for the court's information, and do not expand or limit the issues that might be addressed on appeal. Likewise, the section asking counsel to identify and prior or pending appeals from the same case, and any separate appeals that raise similar issues is intended to provide more information about the procedural history of the case and to ensure that the court has early notice of other pending related matters in case consolidation is appropriate.)

9/2/2014

VIA US MAIL

Clerk of Appellate Courts

25 Rev. Dr. Martin Luther King Jr. Blvd.#305

St. Paul, MN 55155Don Mashak

Rt 1 Box 231


RE: Court File No. 19H-CR-14-1019 Cover letter to documents meant to correct deficiencies.

Hello:

Please take notice that though your notice of deficiency is postmarked August 20, 2014, I did not received it until 8/27/2014. This left not much time to meet the 10 day deadline, and thus it is not as well researched as I would like. Let me next say by way of introduction, on the day I received this Misdemeanor Disorderly Conduct Ticket, I was attending a hearing where there were supposed to be allegation of the Dakota County Law Enforcement being complicit in the local drug trade. As a result of this citation, I never got to hear this testimony. I believe this trumped up charge is entirely retaliatory and meant to send a signal to other members of the press to say out of Dakota County MN. At the time I filed this appeal, no Public Defender had been assigned to me so I filed it myself to avoid deadlines expiring.

I allege Dakota County is involved in a criminal conspiracy to Obstruct Justice and fix the outcome of this case. (See the cover letter from Dakota County returning the original Appeal documents) As a result, everything that is transpiring is convoluted and evasive, and as the Appellant I have to try to make sense out of this mess for the Court. Please assign any stigma of looking foolish to the Dakota County Personnel involved.

Next comes the issues of the filing fees and the Transcript Fees. I have been sent on several wild goose chases ending in denial of my having these fees waived. (For instance, I filed an IFP which was returned because they said I already had a Public Defender.) Finally, last Friday I was informed merely notifying the Court that I had a Public Defender would cause these fees to be waived. Please find attached a copy of the Letter of Representation I received. I have also directed Mr. Rogosheske to provide you the requisite documentation today directly..

I believe the remaining attached documents fulfill all of the deficiencies.Thank you for your time.

In Liberty,

09/02/2014

_______________________________Don Mashak

Defendant

Rt 1 Box 231


[email protected]:letter from Public Defender Rogosheske& Cover Letter of returned appeal papers from Dakota CountySTATE OF MINNESOTA

IN COURT OF APPEALS

CASE TITLE:

Don Mashak

Appellant,

NOTICE OF MOTION, MOTION AND BRIEF FOR EXPEDITED HEARING


APPELLATE COURT CASE NUMBER: A14-1425

State of Minnesota

Respondent.

PLEASE TAKE NOTICE Appellant brings on for hearing a motion for expedited hearing of this matter as soon as it schedule permits.

Appellant brings this appeal to enforce a June 11, 2014 order from the bench by Judge Ausphaug that this matter be heard by a Judge from another County for the sake of the appearance of impartiality. On July 25, 2014 Judge King indicated there was no such order in the file and curtly cut off further discussion of the matter when Appellant turned to Prosecutor Fluegel and asked him to confirm Appellants statements to the Court.

Though the entire original matter has no matter and is a waste of taxpayer money (to further the political purposes of others) it would be a further travesty to wait until Appellant is possibly convicted, forced to appeal and retry the whole matter again. Not to mention the time, effort and expense to Appellant. (The Judicial Beat Down).

Appellant includes by reference all prior pleadings and the pleadings that accompany this Motion, as well as the Transcript of the June 11, 2014 hearing which shall be shortly forthcoming.

Wherefore, Appellant asks the Court to Grant his motion for expedited hearing of this Appellate matter.

Thank you for your time.

In Liberty,

09/02/2014

_______________________________Don Mashak

Defendant

Rt 1 Box 231


[email protected] OF MINNESOTA

IN COURT OF APPEALS

CASE TITLE:

Don Mashak

Appellant,

NOTICE OF MOTION, MOTION AND BRIEF TO USE INFORMAL BRIEF UNDER 128.01



State of Minnesota

Respondent.

PLEASE TAKE NOTICE Appellant brings on for hearing a motion to allow Appellant to use an informal Brief pursuant to 128.01

Appellant brings this appeal to enforce a June 11, 2014 order from the bench by Judge Ausphaug that this matter be heard by a Judge from another County for the sake of the appearance of impartiality. On July 25, 2014 Judge King indicated there was no such order in the file and curtly cut off further discussion of the matter when Appellant turned to Prosecutor Fluegel and asked him to confirm Appellants statements to the Court.

Appellant includes by reference all prior pleadings and the pleadings that accompany this Motion, as well as the Transcript of the June 11, 2014 hearing which shall be shortly forthcoming.

In the way of a brief, this Appellant merely states that currently he appears Pro Se and therefore it only reasonable that he be permitted to file an informal brief pursuant to 128.01.

Wherefore, Appellant asks the Court to Grant his motion to use an informal brief pursuant to 128.01

Thank you for your time.

In Liberty,

09/02/2014

_______________________________Don Mashak

Defendant

Rt 1 Box 231


[email protected] OF MINNESOTA

IN COURT OF APPEALS

CASE TITLE:

Don Mashak

AFFIDAVIT OF SERVICEAppellant,

NOTICE OF MOTION, MOTION AND BRIEF FOR EXPEDITED HEARING



State of Minnesota

Respondent.

STATE OF MINNESOTA

COUNTY OF __________________

I, Don Mashak, being first duly sworn, depose and say that on 9/2/2014, I served the attached

1. NOTICE OF APPEAL,

2. STATEMENT OF CASE

3. EXHIBIT 1 COMMUNICATION TO JUDGE AUSPHAUG

4. NOTICE OF MOTION, MOTION AND BRIEF FOR EXPEDITED HEARING

5. NOTICE OF MOTION, MOTION AND BREIF TO USE INFORMAL BREIF PER 128.01

6. COVER LETTER

7. LETTER FROM COUNTY COURT RETURNING APPEAL

8. LETTER OF REPRESENTATION FROM PUBLIC DEFENDER ALEXANDER ROGOSHESKEon the following parties by mailing to each of them a copy thereof, enclosed in an envelope, postage pre-paid, and by depositing the same in the United States Mail, direct to said party as follows:

Clerk of Appellate Courts

MN State Attorney General

305 MN Judicial Center

445 Minnesota Street #1400

25 Rev. Dr. Martin Luther King Jr. Blvd

St. Paul MN 55101

St. Paul, MN 55155

Telephone No: 800-657-3787

Clerk of District Court

Prosecutor Dan Fluegel

1560 Hwy 55

999 Westview Dr St 1

Hasting MN 55033

Hastings, MN 55303-2432

Telephone No.: 651-438-8199

Telephone No:651-438-9777

______________________________

Signature Don Mashak

Dated:________________________

NOTARY:__________________________________

State of MN v Don Mashak Appellate RCAPForm 133 Statement of Case 14-1425

Documents

Transcript of State of MN v Don Mashak Appellate RCAPForm 133 Statement of Case 14-1425