This opinion will be unpublished and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. 

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

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 
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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.

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 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.