State of Minnesota v. Abdirizak Mohamed Abdi ( 2014 )

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.
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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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