                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0823

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                    Brian Scott Schmitz,
                                         Appellant.

                                     Filed June 6, 2016
                                         Affirmed
                                        Ross, Judge

                               Stearns County District Court
                                 File No. 73-CR-13-9209

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         Brian Schmitz repeatedly sexually assaulted his girlfriend’s preteen daughter over

the course of several years. He pleaded guilty to one count of first-degree criminal sexual
conduct and then argued to the district court that his sentence should be stayed because he

is particularly amenable to probation. The district court instead imposed a presumptive

guidelines sentence. We affirm the sentence because the district court carefully considered

the relevant information before declining Schmitz’s request for a dispositional departure.

                                         FACTS

       The state charged Brian Schmitz in 2013 with two counts of first-degree criminal

sexual conduct and one count of second-degree criminal sexual conduct based on a report

that he sexually assaulted M.D., his then girlfriend’s 13-year-old daughter. Schmitz

allegedly touched M.D.’s genitals and forced her to touch his over several years when M.D.

was younger than 13. Schmitz pleaded guilty to one count of first-degree criminal sexual

conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2012), and the state

agreed to drop the remaining charges and to allow him to argue for a downward departure.

       Schmitz argued at sentencing that he was particularly amenable to probation

because, according to him, he posed a low risk to reoffend; he had himself been the victim

of sexual abuse; he suffered from a traumatic brain injury; and he was eager to participate

in chemical-dependency programming and sex-offender treatment, which would not be

immediately available if he were sent to prison. He apologized for his actions and

acknowledged that the offense was “a hundred percent” his fault.

       The district court refused to order probation. It found that although Schmitz

seemingly progressed to acknowledge his crime, no substantial and compelling reason

supported a downward departure. The district court pointed out that Schmitz had abused

M.D. both when he was sober and when he was not and that he had an extensive criminal


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history that indicated he posed a risk to public safety. The court also highlighted that

Schmitz had previously attempted to blame the child by saying that she “acted much older”

than she was. The district court issued the presumptive sentence of 144 months in prison

with a ten-year conditional-release term.

       Schmitz appeals that sentence.

                                      DECISION

       Schmitz argues that the district court erred by denying his motion for a downward

dispositional departure. The district court is afforded “great discretion” in sentencing and

will be reversed only when it abuses that discretion. State v. Soto, 855 N.W.2d 303, 307–

08 (Minn. 2014) (quotation omitted). It may depart downward from a presumptive

guidelines sentence only if mitigating circumstances constituting a substantial and

compelling reason to depart are present. Id. at 308; Minn. Sent. Guidelines 2.D.1 (2012).

A downward dispositional departure in the form of a stayed sentence with probationary

terms may be justified because of the “defendant’s particular amenability to individualized

treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In

determining whether a defendant is particularly amenable to probation, the district court

may consider a nonexclusive list of factors, including the defendant’s age, criminal record,

remorse, cooperation, attitude in court, and the support of family or friends. Id.

       Schmitz argues that his remorse, cooperation, and low risk to reoffend demonstrate

that he is particularly amenable to probation and that the district court should have stayed

the execution of his sentence. Even if Schmitz identified mitigating factors justifying a

downward departure from the presumptive sentence (and we are not convinced he has), the


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district court was not required to depart. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

We will affirm a presumptive sentence “when the record shows that the sentencing court

carefully evaluated all the testimony and information presented before making a

determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotation

omitted), review denied (Minn. Sept. 17, 2013). In denying Schmitz’s request for a

downward departure, the district court considered Schmitz’s psychosexual evaluation, the

PSI report, the victim-impact statement, arguments by counsel, and Schmitz’s statements

of remorse. Because the record informs us that the district court carefully took this

information into account, we hold that the court did not abuse its discretion by denying

Schmitz’s departure request.

      Affirmed.




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