Once again, our impaired county attorney drops the ball. As a prosecutor, how do you overlook filing a brief on an appeal? Nonfeasance? Misfeasance? Too much Takka perhaps?

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Murder conviction tossed in Carlton County fentanyl overdose

By Tom Olsen Today at 8:56 p.m.

The Minnesota Court of Appeals has reversed a Cloquet man’s murder conviction for allegedly providing a fatal dose of a prescription painkiller to his daughter’s friend.

In overturning Robert Todd Ferguson’s third-degree murder conviction, the three-judge panel noted that prosecutors failed to provide a written brief in the appeal process.

“This is a very serious case,” Judge John Rodenberg wrote in a 17-page opinion. “A young man lost his life after consuming illegally sold fentanyl, a powerful narcotic. Because the state failed to file a brief, we are left to construct the state’s position from the record as constituted, and without the benefit of focused counterarguments to those presented by appellant.”

Ferguson, 53, was sentenced to more than seven years in prison in December 2014 after a Carlton County jury concluded that he was responsible for the death of 25-year-old Paul Duane Mrosla.

Court records show that he filed the appeal through the state public defender’s office in March 2016, later providing a legal brief on the issues. When the state failed to submit its brief by an October deadline, the court did not schedule oral arguments and decided the case without any retort from the prosecution.

Citing the lack of a response, the opinion issued Monday concurred with Ferguson’s claim that his conviction could not stand because it was based on uncorroborated testimony of his daughter.

The court docket lists both the Carlton County Attorney’s Office and Minnesota Attorney General’s Office as respondents in the case. Inquiries to the two agencies did not provide a clear explanation of the situation.

Ben Wogslund, a spokesman for the attorney general, said the responsibility for the appeal remained in the hands of Carlton County. The attorney general’s office does provide assistance in some appeals, but he said the county never followed up on Ferguson’s case.

“We had, I think, talked to them at one point about providing assistance to them, and in very clear terms said if you provide us the brief we will then make a final determination if we can provide assistance,” Wogslund said. “My understanding is they never did that, and so ultimately it remains with them.”

County Attorney Thom Pertler was not in his office on Monday afternoon, but responded to an email seeking an explanation.

“That’s exactly what we’re trying to figure out,” he wrote to the News Tribune. “My attorneys told me they sent the file down to the AG when the appeal was filed so I’m trying to follow up on that.”

Pertler said he would take some time to review the opinion before deciding how to proceed.

“We’re assessing the court’s opinion and will be considering our options, including a possible appeal,” he wrote. “We need to talk to the family before any formal action.”

Mrosla died from an overdose of the potent Schedule II drug on Jan. 15, 2014. He was a friend of the defendant’s daughter, Charity Ferguson.

Several people testified at trial that Mrosla began having a bad reaction to the drug after ingesting it at Ferguson’s Cloquet home. He was loaded into a car and driven by Charity Ferguson to his parents’ Carlton home, where he died in the driveway.

At issue in the trial was who provided Mrosla with the fentanyl — a drug that officials say can be up to 50 times more potent than heroin. Carlton County prosecutors successfully argued to jurors that the drug was sold to him by Robert Ferguson, while his defense attorneys contended that it was provided to the victim by his daughter.

Charity Ferguson testified at the trial that she brought Mrosla and another friend there for the purpose of buying the fentanyl patch. The two men divided the patch and ingested the drug, she said.

But the defendant testified that he never gave or sold the patch to the men and said he was unsure how they would have obtained it. Ferguson testified that he began taking the prescription drug in about 1998 to alleviate chronic pain brought on by multiple car accidents.

Judge Leslie Beiers instructed jurors at the time that Ferguson could not be found guilty solely based on Charity Ferguson’s testimony because she was considered an accomplice and had been granted immunity to cooperate in the prosecution of her father.

The jury of nine women and three men did find Ferguson guilty after about four hours of deliberation — a decision the appeals court said was contradictory to the jury instructions.

“The record here is devoid of evidence corroborating (Charity Ferguson’s) testimony that appellant directly or indirectly participated in the sale of fentanyl,” the court wrote.

The opinion marks a potentially significant ruling in the efforts by authorities to crack down on illegal drug sales.

Prosecutors have increasingly used the third-degree murder statute to take on those suspected of providing heroin, fentanyl and other opioids that lead to overdose deaths. But opponents have said the law, instead of punishing major dealers, serves to harshly punish small-time users who are struggling with their own addiction issues.

The statute allows a maximum sentence of 25 years in prison for anyone who “causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II.”

Another Northland third-degree murder case is pending before the Court of Appeals — Bryan Joseph Hodapp, 29, of Eveleth, is challenging his conviction and 10-year prison sentence for providing a fatal dose of a synthetic hallucinogen to his girlfriend, 21-year-old Krystal Wicklund, in August 2013.

Both parties have filed briefs in that case, and a panel of judges will hear oral arguments on March 15.

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