This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1923

State of Minnesota,

Appellant,

vs.

Michael James Kennedy,

Respondent.

Filed January 14, 1997

Affirmed

Klaphake, Judge

Washington County District Court

File No. K0-96-154

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101

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.

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

KLAPHAKE, 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.

D E C I S I O N

Respondent Michael James Kennedy pleaded guilty to theft from a person in violation of Minn. Stat. § 609.52, subds. 2(1) and 3(3)(d)(i) (1994) for shoplifting $15 to $20 of toiletries from an Oakdale grocery store on December 3, 1995. The parties and the court agreed that the offense was a severity level IV crime under the Minnesota Sentencing Guidelines. With respondent's criminal history score of 5, the presumptive sentence was 32 (30-34) months. The district court imposed an 18-month sentence, stating on the record that the downward departure was warranted by "a chance for rehabilitation." The court also referenced a letter from respondent's mother pleading for leniency, claiming respondent "has learned from his mistakes and will stay out of trouble," and highlighting the details of respondent's kidney disease and his need for frequent dialysis.

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.[1]

Affirmed.

[ ]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.