                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1812

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              Donald Kalib John Nichols,
                                     Appellant.

                                 Filed July 25, 2016
                                      Affirmed
                                    Reilly, Judge

                           Hennepin County District Court
                             File No. 27-CR-14-35729

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Smith,

Tracy M., Judge.

                       UNPUBLISHED OPINION

      Appellant Donald Kalib John Nichols challenges the district court’s sentencing

decision arising from his conviction of attempted intentional second-degree murder. The

district court departed from the presumptive sentence under the Minnesota Sentencing
Guidelines and granted a downward durational departure but declined to grant a downward

dispositional departure. Because the district court did not abuse its discretion in sentencing,

we affirm.

                                           FACTS

       Appellant entered a guilty plea and was convicted of attempted second-degree

murder stemming from events that occurred in December 2014. Police officers responded

to an emergency call that appellant was suicidal and had ingested prescription pills and

alcohol. Appellant’s father told the officers that appellant wanted to commit “suicide by

cop,” and had fled into the woods behind the house wearing body-armor and a helmet and

carrying a machete. Medina Police Sergeant J.N., Hennepin County Sheriff Deputy B.B.,

and Plymouth Canine Officer C.L. and his canine partner began searching the woods for

appellant.

       Officers J.N. and C.L. found appellant in the woods, “clutching the handle of a

machete knife” with both hands and holding it upwards at a 45-degree angle toward the

two officers. The knife was a two-foot long “tactical type machete with a serrated blade.”

The officers ordered appellant to drop the knife and put up his hands, but appellant refused

and continued holding the machete over his head “in a fighting stance.” Officer J.N. drew

his handgun and pointed it at appellant, and appellant yelled at the officer “to shoot him or

kill him” and to “do it.” Officer J.N. stated he did not want to shoot appellant. Appellant

continued yelling at the officers and “advanced multiple times in short increments . . . while

holding the machete at shoulder height.”




                                              2
       As Officers J.N. and C.L. were speaking with appellant, Officer B.B. came through

the woods behind appellant and approached him unnoticed. Officer B.B. was carrying a

Taser and intended to incapacitate appellant to prevent a shooting situation. Officer B.B.

deployed his Taser and struck appellant in the back of his legs. The Taser did not affect

appellant. Appellant turned toward Officer B.B. and began running at him, holding the

machete raised above his head with both hands on the handle. Officer B.B. stumbled

backwards and dropped his Taser. Officer B.B. attempted to draw his handgun, but

appellant began running at the officer and swinging the machete “as if preparing to cut

wood with an ax.” Appellant swung the machete at Officer B.B. Officer B.B. attempted

to deflect the machete blade with his baton, but the blade struck, and cut the officer’s upper

arm. Officer B.B. believed appellant was trying to kill him and Officer J.N., who was

observing the exchange, also believed appellant was trying to kill the officer. Officer B.B.

pushed appellant away with his uninjured arm and drew his handgun. Appellant began to

run at Officer B.B. with his machete a third time, and Officer J.N. fired two rounds and

shot appellant in the upper mid-chest. The officers immediately sought medical help for

appellant and placed him under arrest.

       The state subsequently charged appellant with attempted second-degree intentional

murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2014), and first-degree assault

against a peace officer in violation of Minn. Stat. § 609.221, subd. 2(a) (2014). The district

court ordered a rule 20.02 psychological evaluation and assessment. A Hennepin County

forensic psychologist rendered the following opinion regarding appellant’s criminal

responsibility for the December 4 incident:


                                              3
              It appears that [appellant] experienced ongoing significant
              psychiatric destabilization on December 4, 2014, most likely
              precipitated by self-induced substance intoxication from the
              preceding evening, as well as possible lingering intoxication.
              His mood, judgment, impulse control and cognition continued
              to be significantly impaired, most likely as the result of noted
              substance abuse. While [appellant] does suffer from a mental
              illness, the evidence would suggest that observed erratic and
              aggressive behaviors stemmed from substance-induced
              psychiatric symptoms.

              ...

              Substance-induced psychiatric decompensation is generally
              viewed as inconsistent with a mental illness defense, when the
              substance(s) were voluntarily ingested, due to the widely
              known potential for mood altering chemicals to result in
              psychiatric instability. . . . While [appellant’s] psychiatric
              decompensation appears to have significantly contributed to
              the alleged offenses on December 4, 2014, it does not appear
              that he would have experienced such a decompensation in the
              absence of his voluntary substance abuse.

              As such, it is my opinion that [appellant] was NOT at the time
              of the offenses charged, as a result of mental illness or
              deficiency, laboring under such a defect of reason as not to
              know the nature of the acts or that they were wrong.

       Appellant entered a Norgaard guilty plea to attempted second-degree intentional

murder and the state dismissed the assault charge.1 The parties did not agree on a

sentencing recommendation. The district court informed appellant that at a contested

sentencing hearing, “the State could argue for a guideline sentence, which . . . is a prison



1
 “A plea constitutes a Norgaard plea if the defendant asserts an absence of memory on the
essential elements of the offense but pleads guilty because the record establishes, and the
defendant reasonably believes, that the state has sufficient evidence to obtain a conviction.”
Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009); see State ex rel. Norgaard v.
Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961).


                                              4
commitment of 153 months, but [appellant’s] attorney could also argue for whatever he

felt was appropriate . . . which could be probation or something else.” Appellant indicated

that he understood this explanation.

       The presentence investigation report recommended a dispositional departure with

credit for jail time served and a five-year probationary period. Appellant moved for a

downward durational departure and a downward dispositional departure. The district court

granted appellant’s request for a downward durational departure, determining that there

were “substantial and compelling reasons to depart” durationally from the 153-month

presumptive prison term and imposing a 99-month prison sentence. However, the district

court denied appellant’s request for a dispositional departure. This appeal follows.

                                       DECISION

       We review a district court’s refusal to grant a dispositional departure from the

sentencing guidelines for an abuse of discretion, State v. Bertsch, 707 N.W.2d 660, 668

(Minn. 2006), and we will affirm the imposition of a presumptive sentence “when the

record shows that the sentencing court carefully evaluated all the testimony and

information presented before making a determination,” State v. Johnson, 831 N.W.2d 917,

925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013) (quotation omitted). The

Minnesota Sentencing Guidelines prescribe a sentence or a range for the sentence that is

“presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quoting

Minn. Sent. Guidelines 2.D.1 (2012)). The district court “must pronounce a sentence

within the applicable range unless there exist identifiable, substantial, and compelling




                                             5
circumstances” distinguishing the case and overcoming the presumption in favor of the

presumptive disposition. Id.

       Under the Minnesota Sentencing Guidelines, the sentencing court first calculates

the defendant’s presumptive sentencing range for the underlying offense.           State v.

Kangbateh, 868 N.W.2d 10, 17-18 (Minn. 2015). “When an offender is sentenced for an

attempted offense under Minn. Stat. § 609.175 . . . the presumptive duration is one-half of

that found in the appropriate cell on the applicable Grid for the underlying offense.” Minn.

Sent. Guidelines 2.G.2 (2014). For an offender with a criminal history score of zero, the

presumptive sentence for intentional second-degree murder is commitment to the

Commissioner of Corrections for 306 months, with a lower range of 261 months and an

upper range of 367 months. Minn. Sent. Guidelines 4.A. Thus, the presumptive sentencing

range for appellant’s second-degree attempted murder offense is 130.5 months to 183.5

months, with a presumptive duration of 153 months.

       The district court sentenced appellant to 99 months, below the presumptive range

provided by the sentencing guidelines for an individual with appellant’s criminal history

score. However, the district court declined to grant appellant a downward dispositional

departure. Appellant challenges the district court’s denial of his motion for a downward

dispositional departure on the grounds that: (1) he suffered from a long-standing and severe

mental illness, and (2) he was amenable to treatment and to probation.

                                            A.

       When sentencing an offender with a “serious and persistent mental illness” to

imprisonment, the district court, “when consistent with public safety, may instead place the


                                             6
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 (2014). Placing a mentally

ill offender on probation is discretionary with the district court, and we “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.” State v. Abdi, 855 N.W.2d 546, 548-

49 (Minn. App. 2014) (concluding district court did not abuse discretion in denying

dispositional departure because public safety would not be served by departure).

       The district court considered expert medical opinions from both parties, as well as

the probation department’s recommendation for possible community mental health

treatment. The district court weighed these recommendations against the interests of public

safety and determined that “[p]ublic safety cannot be ignored.” See Minn. Stat. § 609.1055

(authorizing court to place offender into alternative living program “when consistent with

public safety”). The district court stated that although appellant’s mental illness could be

treated through proper medication, “it is equally clear if he does not take his medication as

directed the public is at danger.” In a thoughtful and well-analyzed decision, the district

court concluded that:

              Simply, and tragically in many ways, [appellant] has
              demonstrated an inability to be amenable to the same terms the
              Court would use for probation. His suicidal actions and the
              injury he caused to a deputy while attempting to commit
              suicide-by-cop show there was more intent here to carry out
              his plan – even if it meant injuring a responding officer to
              achieve his goal. His actions do not justify a dispositional
              departure.



                                             7
       As the district court noted, “[t]his is a difficult case,” calling into question “the

interplay between mental illness, voluntary intoxication, suicidal thoughts, and the

involvement of police in a mental health crisis.” The district court detailed appellant’s

history of mental illness and the regular care he received from a psychiatrist and a

psychologist.   But the factual record also revealed that appellant failed to take his

medication as prescribed and continued to abuse marijuana and alcohol, which were known

to trigger appellant’s psychotic episodes. The rule 20.02 psychological evaluation also

supports a determination that appellant’s actions were primarily the product of alcohol

intoxication and ingestion of prescription drugs, and that appellant “was not operating

under a mental illness at the time of the offense that could provide a legal defense.” Based

upon the record as a whole, we determine that the district court’s decision declining to

grant a dispositional departure on the basis of mental illness was not an abuse of discretion.

                                             B.

       A defendant’s “particular amenability to individualized treatment in a probationary

setting” may justify a downward dispositional departure from a presumptive commitment

to prison. Soto, 855 N.W.2d at 308 (quoting State v. Trog, 323 N.W.2d 28, 31 (Minn.

1982) (emphasis omitted)). When justifying a dispositional departure, the district court

focuses on the defendant as an individual and on whether the presumptive sentence would

be best for him and for society. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).

Minnesota courts are guided by several factors, known as Trog factors, to determine if a

defendant is particularly amenable to individualized treatment in a probationary setting.

Trog, 323 N.W.2d at 31. These factors include “the defendant’s age, his prior record, his


                                              8
remorse, his cooperation, his attitude while in court, and the support of [the defendant’s]

friends and/or family.” Id. However, the presence of mitigating factors “[does] not

obligate the court to place defendant on probation or impose a shorter term than the

presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

       The district court considered the factors underlying appellant’s dispositional

departure request. Appellant was 23 years old at the time of the offense. Although

appellant did not have a “violent or felonious criminal history,” he had several “touches”

with the criminal justice system, including seven misdemeanor convictions and at least

three juvenile adjudications. Moreover, appellant committed this offense while under a

stayed civil commitment order that required him, among other things, to take his

antipsychotic medication as prescribed. And although appellant expressed remorse during

the sentencing hearing, the district court considered the statements “insufficient” because

he did not take responsibility for treating his mental illness. Appellant submitted letters

from family and friends at the sentencing hearing, and the district court expressed its hope

that appellant’s “close-knit family and small circle of friends remain a steady source of

comfort for him.” The record demonstrates that the district court considered the Trog

factors and ultimately concluded that a dispositional departure was not appropriate. We

discern no abuse of discretion in the district court’s decision.

       The Minnesota Supreme Court recognized that only the “rare case” merits reversal

based on the district court’s refusal to depart from the sentencing guidelines. State v.

Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This is not the “rare case” compelling reversal.

The district court stated that: “[w]hile the Court recognizes the documented long-term


                                              9
mental illness from which [appellant] suffered, that was not the lone reason for his conduct.

Perhaps more directly, it was not demonstrated that he is particularly amenable to probation

or he can be safely treated in the community.” The district court considered appellant’s

arguments and the record as a whole and concluded that appellant was not entitled to a

downward dispositional departure from the sentencing guidelines. The record supports the

district court’s decision that there were not “substantial and compelling reason[s]”

supporting a dispositional departure in this case, Soto, 855 N.W.2d at 314, and we affirm.

       Affirmed.




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