                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2401

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              Abdirizak Mohamed Abdi,
                                      Appellant.

                               Filed October 27, 2014
                                      Affirmed
                                  Connolly, Judge

                           Hennepin County District Court
                             File No. 27-CR-11-28068


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Danail M. Mizinov, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and

Johnson, Judge.

                                   SYLLABUS

      Because Minn. Stat. § 609.1055 (2012) gives the district court discretion to make a

dispositional departure from the sentencing guidelines by placing an offender with a

serious and persistent mental illness on probation with the condition that the offender

successfully complete an appropriate supervised alternative-living program having a
mental-health treatment component, an appellate court reviews the decision to make or

not make such a departure for an abuse of discretion.

                                      OPINION

CONNOLLY, Judge

       Appellant entered an Alford plea to a charge of assault in the first degree; the plea

agreement provided that the state would seek a prison sentence and that appellant would

argue for a dispositional departure on the ground of mental illness.1 The district court

rejected appellant’s argument and imposed the presumptive prison sentence. Appellant

challenges the sentence.

                                         FACTS

       In September 2011, appellant Abdirizak Mohamed Abdi repeatedly stabbed his

wife in the home they shared with their two small children.           His wife ran to the

neighbors, told them about the stabbing, and called 911; she also reported the matter to

the police.

       Appellant was charged with attempted murder in the second degree. The district

court ordered that he be evaluated for competency to proceed to trial under Minn. R.

Crim. P. 20.01. Appellant was initially found incompetent to stand trial, but, after

undergoing treatment, was found competent.

       He entered an Alford plea to an amended charge of assault in the first degree. The

plea agreement provided that the state would seek a prison sentence of 86-103 months

1
  A defendant entering an Alford plea maintains innocence but concedes that there is
sufficient evidence to support a guilty verdict. State v. Goulette, 258 N.W.2d 758, 761
(Minn. 1977); accord North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).

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and that appellant would seek a dispositional departure on the ground of mental illness.

Following a hearing, at which appellant presented five witnesses, the district court denied

his request for a dispositional departure and imposed an 86-month prison sentence.

                                         ISSUES

       1.     Does the district court have discretion to make a dispositional departure

from the sentencing guidelines by placing an offender with a serious and persistent

mental illness on probation conditioned on the offender’s successful completion of a

supervised alternative-living program having a mental-health treatment component?

       2.     Did the district court abuse its discretion in imposing a prison sentence on

appellant?

                                       ANALYSIS

1.     Standard of Review

       In construing statutes, “‘[m]ay’ is permissive.” Minn. Stat. § 645.44, subd. 15

(2012). When an offender has “a serious and persistent mental illness . . . the court,

when consistent with public safety, may instead [of imposing a prison term] place the

offender on probation . . . and require as a condition of the probation that the offender

successfully complete an appropriate supervised alternative living program having a

mental-health treatment component.” Minn. Stat. § 609.1055 (2012) (emphasis added).

Thus, placing a mentally ill offender on probation conditioned on completion of a

supervised alternative-living program is discretionary with the district court.        We




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therefore review a district court’s decision to make a dispositional departure on the

ground of mental illness under Minn. Stat. § 609.1055 for an abuse of discretion.2

2.     Appellant’s Sentence

       Basing its decision on two conclusions, the district court decided not to make a

dispositional departure from the sentencing guidelines by putting appellant on probation

with the condition that he complete an appropriate supervised alternative-living program.

Appellant asked to be sent to a program at a residence for people of Somali descent that

he designated as a place where he could “successfully complete an appropriate supervised

alternative living program having a mental health treatment component” within the

meaning of Minn. Stat. § 609.1055. The district court concluded that the program at the

residence did not qualify as a “supervised alternative living program” and that sending

appellant there would not be consistent with public safety. The state notes in its brief that

the district court’s written decision was “thorough, reasoned, analytical, rational, and

based on the evidence in the record.” We agree.

       A.     Suitability of the residence

       The president and CEO of the residence program had not met appellant and knew

nothing about him, but testified extensively about the program at the residence.


2
  As the district court noted, several unpublished decisions of this court have determined
that this is the appropriate standard of review. See, e.g., State v. Shingobe, No. A10-
0900, (Minn. App. Feb. 1, 2011) (affirming denial of dispositional departure for mentally
ill defendant based on reasons of public safety); State v. Sturm, No. A06-1299, (Minn.
App. Sept. 4, 2007) (same); State v. Molacek, No. A05-0499, (Minn. App. Oct. 4, 2005)
(affirming dispositional departure for mentally ill defendant because Minn. Stat.
§ 245.462, subd. 20(c) (2004), includes “bipolar disorder” as a mental illness).


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Specifically, he testified that: (1) the program has never had a resident who was sent there

on probation by the criminal justice system; (2) about 50% of the residents have bipolar

disorder; (3) the residents are on medication; (4) residents who are not compliant with

their medication regimen are discharged; (5) residents stay an average of one year and

eight months; (6) whether a resident is ready to leave is determined by the staff and the

residents’ psychiatrists; and (7) nothing can be done to require residents who have chosen

to leave the program to return to it.

       Based on this testimony and on the testimony of appellant’s psychiatrists that

appellant would require close monitoring and close supervision to manage his mood

disorder through medication and other means, the district court determined that,

“[because] identifying and quickly responding to such symptoms [as appellant’s] may be

crucial to preventing the occurrence of another violent incident, . . . [the program at the

residence] would not be able to provide the close supervision or emergency response time

necessary for [appellant].” There was no abuse of discretion in this determination.

       B.     Consistent with Public Safety

       Appellant testified at the Alford plea hearing that: (1) while he remembers nothing

about the incident, he understood that his wife had run to the neighbors and told them that

he had stabbed her with a knife; (2) she reported this to the police; (3) she would testify if

appellant were tried on a charge of attempted murder; (4) she still suffered injury or

substantial bodily harm from the knife wounds; (5) her testimony would give the jury

reason to convict appellant of first-degree assault; and (6) there was enough evidence

from the neighbors, from his wife, from the 911 calls, from the police report, and from


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the medical examiners to convict him. Appellant answered “Yes” when the district court

asked him if, while maintaining his innocence, he agreed there was enough evidence to

convict him.

       The program’s president and CEO testified that the residence is not locked during

the day; residents may come and go as they please; residents are encouraged to have day

jobs; no security guards or police officers are on the staff; the 24-hour supervision

provided by the program means that a staff person is always in the residence; some

residents go AWOL; no doctors are on the staff; no staff members are trained in spotting

bipolar symptoms; and, when staff members notice residents’ behavior changes, they call

a doctor or a supervisor to report the changes.

       Based on this evidence, the district court concluded that:

                       [Appellant] is a serious risk to public safety. He
               brutally attacked his wife with a knife, repeatedly stabbing
               her, chasing her through the home they shared with their two
               small children, and inevitably leaving her for dead on the
               dining room floor. This is an act of violence that cannot be
               minimized or explained away by the diagnosis of a mental
               illness. If [appellant] is capable of this type of violent crime
               there is no indication of what might happen if or when he is
               released into the community, which is theoretically what [he]
               asks this court to do. . . . [The program] has never had a
               resident placed there as a substitute to prison [and] has no
               means of notifying the neighborhood of the dangerous nature
               of a potential resident, leaving the public unreasonably
               unaware.

The determination that making a dispositional departure by sending appellant to the

program at the residence rather than imposing a prison sentence would not be consistent




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with public safety was not an abuse of discretion.         Indeed, the statute specifically

provides that this factor is to be considered.

       Finally, appellant argues that the district court did not consider a downward

durational departure once it had rejected his request to be sent to the program at the

residence. Apart from the fact that such a departure was not contemplated by the express

terms of the plea agreement, the district court did carefully consider such a request. In its

decision the district court stated:

                     Per the [s]entencing [g]uidelines, this court has the discretion
              to impose a durational departure in circumstances where the court
              finds that “the offender, because of physical or mental impairment,
              lacked substantial capacity for judgment when the offense was
              committed.” [Minn. Sent. Guidelines II.D.2.a.(3) (2010).] This
              mitigating factor may be used as grounds for a departure. Based on
              the severity of the offense, along with the ongoing effect on the
              victim, and the need for a consistent treatment plan, this court does
              not find it appropriate to apply the “mental illness” factor as one
              mitigating [appellant’s] culpability, and in turn sufficient to warrant
              a durational departure in this sentence.

We see no abuse of discretion in the decision not to grant a downward durational

departure.

                                      DECISION

       The standard of review for a district court’s decision to make a dispositional

departure from the sentencing guidelines by placing an offender with a serious and

persistent mental illness on probation with the condition that the offender successfully

complete a supervised alternative-living program having a mental-health treatment

component is abuse of discretion. We see no abuse of discretion in the district court’s




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decision not to place appellant on probation but to impose the presumptive prison

sentence, and affirm it.

       Affirmed.




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