may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael James Kennedy,
Filed January 14, 1997
Washington County District Court
File No. K0-96-154
Richard M. Arney, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14900 61st Street, Stillwater, MN 55082 (for Respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
This is a criminal sentencing appeal brought by the state challenging the trial court's imposition of an 18-month sentence that constituted a downward durational departure from the presumptive 32-month sentence. Because we conclude the district court did not abuse its discretion in imposing the sentence, we affirm.
The state appealed the sentence, correctly identifying that rehabilitation typically applies to dispositional rather than durational departures. See State v. Patton, 414 N.W.2d 572, 575 (Minn. App. 1987). The state also argued that the departure amounted to an abuse of discretion because it is unwarranted by the facts.
After our independent review of the record, we cannot conclude that the district court exceeded its discretion in sentencing respondent. See State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). A downward durational departure is justified if the defendant's conduct is significantly "less serious than that typically involved in the commission of the offense." State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); see Minn. Sent. Guidelines II.D.2.a.(5) (nonexclusive list of mitigating factors supporting downward durational departure includes "substantial grounds * * * which tend to excuse or mitigate the offender's culpability, although not amounting to a defense"). Here, the record established that respondent is a 40-year-old Social Security disability recipient who stole toiletries valued at $15-$20, significantly less than the $500 statutory maximum for this offense. See Minn. Stat. § 609.52, subd. 3(3)(d)(i). This offense could be considered less culpable than the typical offense because respondent, who was of limited financial resources, stole items that are arguably "necessities." The sentence also reflects consideration of respondent's severe medical condition. For these reasons, we decline to alter the sentence imposed by the district court.
[ ]1Although the parties do not raise the issue, it appears that under the guidelines the offense to which respondent pleaded guilty should have been designated a severity level III crime rather than a severity level IV crime. See Minn. Sent. Guidelines IV (level III crimes include thefts of $2,500 or less while severity level IV crimes include thefts of over $2,500). With this lower severity level, the imposed sentence of 18 months would have amounted to a slight downward departure from the presumptive 22-month sentence.