This opinion will be unpublished and may not be cited except as provided by Minn.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 Gene ral, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. B ond, Assistant Public Defender, St. Paul, Minne sota (for appellant) Considered and decided by Reilly, Pr esiding 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 chal lenges the district court’s sentencing decision arising from his conviction of attemp ted intentional second-degree murder. The district court departed from the presumptiv e sentence under the Minnesota Sentencing2 Guidelines and granted a downward durational de parture but declined to grant a downward dispositional departure. Because the district c ourt did not abuse its di scretion in sentencing, we affirm. FACTS Appellant entered a guilty plea and was convicted of attempted second-degree murder stemming from events th at occurred in December 2014. Police officers responded to an emergency call that appe llant was suicidal and had i ngested 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 hous e wearing body-armor and a helmet and carrying a machete. Medina Po lice 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 tw o-foot long “tactical type ma chete with a serrated blade.” The officers ordered appellant to drop the knif e 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 appe llant yelled at the offi cer “to shoot him or kill him” and to “do it.” Offi cer J.N. stated he di d not want to shoot appellant. Appellant continued yelling at the officers and “advanced mu ltiple 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 hi s head with both hands on the ha ndle. 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 mach ete “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 tr ying to kill him and Officer J.N., who was observing the exchange, also be lieved 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 thir d 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), a nd first-degree assault against a peace officer in violati on of Minn. Stat. § 60 9.221, subd. 2(a) (2 014). The district court ordered a rule 20.02 psychological ev aluation and assessment. A Hennepin County forensic psychologist rende red the following opinion regarding appellant’s criminal responsibility for the December 4 incident:4 It appears that [appellant] experienced ongoing significant psychiatric destabilization on De cember 4, 2014, most likely precipitated by self-induced substance intoxication from the preceding evening, as well as possible lingering intoxication. His mood, judgment, impulse co ntrol and cognition continued to be significantly impaired, mo st likely as the result of noted substance abuse. While [appella nt] does suffer from a mental illness, the evidence would sugge st that observed erratic and aggressive behaviors stem med 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 alte ring chemicals to result in psychiatric instability. . . . While [appellant’s] psychiatric decompensation appears to have significantly contributed to the alleged offenses on Decembe r 4, 2014, it does not appear that he would have experienced such a decompensation in the absence of his voluntar y 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 dism issed the assault charge. 1 The parties did not agree on a sentencing recommendation. The district court informed appe llant 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 offe nse but pleads guilty because the record establishes, and the defendant reasonably believes, that the state ha s 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 al so argue for whatever he felt was appropriate . . . which could be probati on or something else.” Appellant indicated that he understood this explanation. The presentence investigation report re commended a dispositio nal departure with credit for jail time served an d a five-year probationary peri od. Appellant moved for a downward durational departure a nd a downward dispositional departure. The district court granted appellant’s request for a downward dur ational departure, determining that there were “substantial and compelling reasons to depart” durationally from the 153-month presumptive prison term and imposing a 99-mont h prison sentence. However, the district court denied appellant’s request for a dispositi onal 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 impos ition of a presumptive sentence “when the record shows that the sentencing court ca refully 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 se ntence or a range for the sentence that is “presumed to be appropriate.” State v. Soto , 855 N.W.2d 303, 3 08 (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 compelling6 circumstances” distinguishing th e case and overcoming the pr esumption in favor of the presumptive disposition. Id

. Under the Minnesota Sentenci ng Guidelines, the sentenci ng court first calculates the defendant’s presumptive sentenci ng 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. St at. § 609.175 . . . the presumptive duration is one-half of that found in the appropriate cell on the applicab le Grid for the underlying offense.” Minn. Sent. Guidelines 2.G.2 (2014). For an offender with a crimin al history score of zero, the presumptive sentence for intentional sec ond-degree murder is commitment to the Commissioner of Corrections for 306 months, w ith a lower range of 261 months and an upper range of 367 months. Minn. Sent. Guide lines 4.A. Thus, the presumptive sentencing range for appellant’s second-degree attempte d 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 se ntencing 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 consiste nt with public safety , may instead place the7 offender on probation . . . and require as a condition of the probati on that the offender successfully complete an appropriate superv ised alternative living program having a mental health treatment component.” Minn. Stat. § 609.1055 (2014). Placing a mentally ill offender on probation is discretionary with th e district court, and we “review a district court’s decision to make a dispositional depa rture 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) (concl uding 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 fro m both parties, as well as the probation department’s recommendation for possible community mental health treatment. The district court weighed these recommendations against th e interests of public safety and determined that “[p]ubl ic safety cannot be ignored.” See Minn. Stat. § 609.1055 (authorizing court to place offender into alte rnative living program “when consistent with public safety”). The district court stated th at 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 t houghtful and well-analyzed decision, the district court concluded that: Simply, and tragically in many ways, [appellant] has demonstrated an inabil ity 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 mo re intent here to carry out his plan – even if it meant in juring 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 ment al health crisis.” The dist rict 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 re vealed that appellant failed to take his medication as prescribed and c ontinued to abuse marijuana a nd alcohol, which were known to trigger appellant’s psychotic episodes. The rule 20.02 psychological evaluation also supports a determination that appellant’s ac tions were primarily the product of alcohol intoxication and ingestion of prescription drugs, and that appellant “was not operating under a mental illness at the tim e of the offense that could pr ovide a legal defense.” Based upon the record as a whole, we determine th at the district court’s decision declining to grant a dispositional departure on the basis of me ntal illness was not an abuse of discretion.
B. A defendant’s “particular amenability to in dividualized treatment in a probationary setting” may justify a downward dispositiona l departure from a pr esumptive 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 de fendant as an individual and on wh ether 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 indivi dualized treatment in a probationary setting. Trog , 323 N.W.2d at 31. These fa ctors include “the defendant’s age, his prior record, his9 remorse, his cooperation, his attitude while in court, and the support of [the defendant’s] friends and/or family.” Id . However, the presence of m itigating factors “[does] not obligate the court to place de fendant 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 fact ors underlying appe llant’s dispositional departure request. Appellant was 23 years old at the time of the offense. Although appellant did not have a “viole nt or felonious criminal hist ory,” he had several “touches” with the criminal justice sy stem, including seven misdemea nor convictions and at least three juvenile adjudications. Moreover, ap pellant committed this offense while under a stayed civil commitment order that require d him, among other things, to take his antipsychotic medication as pr escribed. And although appellant expressed remorse during the sentencing hearing, the district court cons idered 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 di strict court expressed its hope that appellant’s “close-knit family and small ci rcle 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 dispos itional departure was not appropriate. We discern no abuse of discretion in the district court’s decision. The Minnesota Supreme Court recognized th at 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-term10 mental illness from which [appellant] suffered, th at was not the lone r eason for his conduct. Perhaps more directly, it was not demonstrated th at 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 c oncluded that appellant was not entitled to a downward dispositional departure from the sent encing guidelines. Th e record supports the district court’s decision that there were not “substantial and compelling reason[s]” supporting a dispos itional departure in this case, Soto , 855 N.W.2d at 314 , and we affirm. Affirmed.