State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0638

State of Minnesota,
Respondent,

vs.

Malcom Tyree,
Appellant.

Filed April 5, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-19-27275

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorn ey, Adam E. Petras , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from his convicti on for being a felon in possession of a firearm
or ammunition, in violation of Minn. Stat. § 624.713, subd. 1(2) (2018), appellant Malcom
Tyree challenges the district court’s denial of his request for a downward dispositional

2
departure. Because the district court exer cised its discretion to carefully consider
appellant’s departure motion, it did not abus e its discretion in declining to grant a
downward dispositional departure. Therefore, we affirm.
FACTS
In 2019, while appellant was on probation following his 2018 convictions for felony
domestic assault and threats of violence, appe llant’s probation officer viewed a social
media photo of appellant holding a pistol. In response, the probation officer and a police
officer conducted a search of appellant’s re sidence during which they located a handgun
loaded with ammunition. On this basis, appellant was charged with two violations of Minn.
Stat. § 624.713, subd. 1(2), for possession of the firearm and for possession of the
ammunition. Appellant appeared before the Hennepin County District Court on
December 16, 2019, and pleaded guilty to one charge. The other charge was dismissed.
Appellant moved for a do wnward dispositional departure from the presumptive 60-
month sentence.1 Appellant argued that a downward dispositional departure was warranted
because he was particularly amenable to probation and had mitigated culpability as shown
by his lifelong struggles with his Fetal Alcohol Spectrum Disorder (FASD) diagnosis and
repeated childhood placements in foster care. The district court denied appellant’s request
for a downward dispositional departure and imposed a se ntence of 36 months’
imprisonment.2 This appeal follows.

1 Pursuant to Minn. Stat. § 609.11 (2020 ), appellant’s convictions for possession of a
firearm and ammunition pursua nt to Minn. Stat. § 609.713 (2018) carried a mandatory
commitment to the commissioner of corrections of “not less than five years” (60 months).
2 This was a downward durational departure which is not at issue in this appeal.

3
DECISION
“A dispositional departure is one that st ays a presumptively executed sentence, or
executes a presumptively stayed sentence.” State v. Stempfley, 900 N.W.2d 412, 415 n.5
(Minn. 2017). “Whether to depart from the gui delines rests within the district court’s
discretion, and this court will not reverse the decision absent a clear abuse of discretion.”
State v. Khalil , 948 N.W.2d 156, 169 (Minn. App. 2020) (quotation omitted), review
granted (Minn. Oct. 1, 2020). “A district cour t can exercise its discretion to depart from
the guidelines only if aggrava ting or mitigating circumstan ces are present, and those
circumstances provide a substantial and co mpelling reason not to impose a guidelines
sentence.” Id. (emphasis and quotation omitted).
Appellant requested a dispositional depart ure based upon two factors: (1) “The
offender is particularly amenable to probation,” and (2) “substantial grounds exist that tend
to excuse or mitigate the o ffender’s culpability.” Minn. Se nt. Guidelines, 2.D.3.1(5), (7)
(2020). Even if mitigating factors are pres ent, a sentencing court need not grant a
downward departure: “departure is not mand atory, and an appellate court will reverse a
[district] court’s refusal to depart only in a rare case.” Kahlil, 948 N.W.2d at 169 (alteration
in original) (quotation omitted); see also State v. Wall , 343 N.W.2d 22, 25 (Minn. 1984)
(presence of mitigating factors does not require a sentencing court to depart).
The record indicates that the district court examined all those facts which appellant
claimed show a particular amenability to probation and the existence of mitigated
culpability. The district court acknowledged that appellant had “made incredible efforts to
do the best with what [he] ha[d],” and that he was “working so hard” while on probation.

4
The court also considered appellant’s diagno sis of FASD, which the court recognized as
resulting in the appellant having difficulty regulating his emotions, and which had impacted
both appellant’s personal relati onships as well as his attemp ts at completing treatment
programs. The court acknowledged that appellant had been “dealt a blow before [he was]
even born” because of this diagnosis—thereby mitigating his culpability. The district court
additionally considered the nature of the offense itself, and how appellant had purchased a
firearm “to display some ideation of self harm” because of his ongoing mental-health
struggles, thereby further mitigating his culpability.
The district court also iden tified a number of facts wh ich weighed against such a
departure. The court noted that, due to his FASD diagnosis, it is “difficult for [appellant]
to regulate [his] emotions,” which included a number of “angry outbursts” during
“schooling” and “treatment.” Importantly, the district court also placed primary emphasis
on the fact that appellant had been on probation for two prior felonies when he committed
the current offense. The district court expr essed concern with placing appellant back on
probation: “I don’t want to take away from [appellant’s efforts], but I can’t, in good faith,
say that you’re particularly amenable because you were on probation when this happened.”
The record demonstrates that the distri ct court exercised its broad discretion in
considering appellant’s departure motion, rejecting it and committing appellant to the
commissioner of corrections. Khalil, 948 N.W.2d at 169 (stating decision to depart rests
within district court’s discretion). On this record, the district court did not abuse its
discretion in denying appellant’s request for a downward dispositional departure.
Affirmed.