This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). 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

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- 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

. U N P U B L I S H E D O P I N I O N ROSS , Judge Brian S chmitz repeatedly sexually assaulted his girlfriend’s preteen daughter over the course of several years. He plead ed guilty to one count of first

- degree criminal sexual2

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 dispos itional departure. FACTS The state charged Brian Schmitz i n 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 1 3

- yea r - 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) (201 2 ), and the state agreed to drop the remaining charges and to allo w 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 r e offend; 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 p rison. 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 acknowledg e his crime , no substantial and compe lling 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 criminal3

history that indicat ed he posed a risk to public safety. The court als o highlighted that Schmitz had previously attempted to blame the child by saying that she “acted much older” than she was. The district co urt issued the presumptive sentence of 144 months in prison with a ten

- year conditional

- release term. Schmitz appeals that sentence. D E C I S I O N 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 discret ion. 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.” St ate 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, att itude 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 ) , the4

district court was not required to depart

. State v. Wall , 343 N.W.2d 22, 25 (Minn. 1984).
W e w ill a ffirm 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) , revie w 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.