This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1543

State of Minnesota,

Appellant,

vs.

Angie Ann Redenius, n/k/a Angie Ann Tesdahl,

Respondent.

Filed October 29, 1996

Affirmed

Lansing, Judge

Martin County District Court

File No. K29521

Terry W. Viesselman, Martin County Attorney, Lyle Koenig, Assistant County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for Appellant)

Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Appellant)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

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

LANSING, Judge

In a sentencing appeal, the state challenges the district court's downward durational departure from the sentencing guidelines. We conclude that the district court did not abuse its discretion when it considered the sentence of the co-defendant in deciding to depart from the sentencing guidelines, and we affirm.

FACTS

Angie Redenius and her co-defendant, Danny Tesdahl, were arrested after Tesdahl broke into a farm house. Redenius was charged with aiding and abetting burglary in the first degree, Minn. Stat. SSSS 609.582, subd. 1(a), 609.05, subd. 1 (1994), aiding and abetting criminal damage to property in the third degree, Minn. Stat. SSSS 609.595, subd. 2(a), 609.05, subd. 1 (1994), and driving after revocation, Minn. Stat. § 171.24, subd. 2 (1994). A jury found her guilty of all three offenses.

After the jury verdict, Tesdahl entered into a plea agreement in which he pleaded guilty to a reduced charge of attempted first degree burglary and was sentenced to 30 months, the presumptive sentence for attempted burglary based on his criminal history score of seven.

Redenius's presumptive sentence for the three convictions was 44 months based on her criminal history score of four. The district court granted a downward durational departure and sentenced Redenius, like Tesdahl, to 30 months. The state appeals.

D E C I S I O N

The Minnesota Sentencing Guidelines allow for both upward and downward departures from the presumptive sentence if "the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

The sentencing guidelines require the district court to provide written reasons specifying the circumstances that justify a departure from the presumptive sentence. Minn. Sent. Guidelines II.D. The guidelines also list factors which may and may not be considered by the district court in making its determination. Minn. Sent. Guidelines II.D.1.-2.

The district court provided four reasons for the downward departure from Redenius's presumptive sentence:

1. The willingness of the [s]tate to enter into an agreement with a co-[d]efendant for a similar amount of time.

2. [The fact t]hat the downward departure was from an amount of time that would have been less than the amount of time served for a similar conviction by the co-[d]efendant due to the additional points that the co-[d]efendant has beyond the [d]efendant's points.

3. [The fact t]hat this [d]efendant had no greater involvement, whether less or not being immaterial, but certainly no greater involvement in the criminal act than the co-[d]efendant.

4. [The fact t]hat the [d]efendant will be provided with an opportunity to get needed chemical dependency treatment and attempt to reunite herself with a young family.

None of these factors is specifically listed in the guidelines as a reason for a downward departure. The guidelines state, however, that the factors they cite as grounds for departure comprise "a nonexclusive list." Minn. Sent. Guidelines II.D.2. (emphasis in original). The state argues that the consideration of a co-defendant's sentence and conduct are improper bases for a departure, requiring reversal. We conclude from our review of Minnesota case law that the sentence and conduct of a co-defendant are appropriate considerations for the sentencing court.

In State v. Vazquez, 330 N.W.2d 110 (Minn. 1983), for example, the supreme court implied that these considerations are appropriate when it said: "[E]quality and fairness in sentencing involve more than comparing the sentence the appealing defendant received with the sentence his accomplices received. It also involves comparing the sentence of the defendant with those of other offenders." Id. at 112 (emphasis added). If fairness in sentencing requires more than consideration of a co-defendant's sentence, by definition it also includes that consideration.

Likewise, in State v. Back, 341 N.W.2d 273 (Minn. 1983), the court identified a co-defendant's sentence as a basis for departure: "[W]e have discretion, if we choose to use it, to reduce a defendant's sentence in order to make it more equitable with the sentence that a similarly situated codefendant received." Id. at 277. Despite the fact that the court declined to exercise its discretion to equalize the sentences of two co-defendants in Back, this language demonstrates that such considerations are not impermissible. See also State v. McClay, 310 N.W.2d 683, 685-86 (Minn. 1981) (equalizing sentences of co-defendants).

Because we believe that the district court's evaluation of Redenius's sentence in light of the sentence and conduct of her co-defendant provides ample justification for the downward durational departure, we do not reach the issue of whether Redenius's status as a parent or her access to chemical dependency treatment are "social factors" impermissibly considered by the district court. The district court considered appropriate factors when it sentenced Redenius to 30 months rather than the presumptive 44 months in light of the sentence and conduct of her co-defendant.

Affirmed.