This opinion will be unpublished and 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. 

U N P U B L I S H E D O P I N I O N 

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 
2 

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.” 
3 

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: 
4 

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). 
5 

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. 

D E C I S I O N 

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 
6 

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 
7 

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. 
8 

 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 
9 

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 
10 

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.