State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0608

State of Minnesota,
Respondent,

vs.

Brandon John Schmidt,
Appellant.

Filed May 8, 2023
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-CR-20-7791

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max Brady Kittel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
On appeal from his convicti on for third -degree criminal sexual conduct, appellant
argues the district court abused its discretion in denying his motion for a downward
dispositional departure from the presumptive prison sentence . Because the district court
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carefully evaluated the re asons for and against departure when concluding that appellant
was not particularly amenable to individualized treatment in a probationary setting, w e
affirm.
FACTS
In November 2020, appellant Brandon John Schmidt was living with his former
girlfriend, K.W., in their shared residence after they recently ended their relationship. One
evening, Schmidt groped K.W. and she ordered him to stop. Schmidt repeatedly left the
residence to drink alcohol in his vehicle and then return inside, appearing more and more
intoxicated each time. K.W. told Schmidt she did not want to sleep beside him and asked
if he wanted to sleep on the bed or the couch. After Schmidt did not respond, K.W. chose
to sleep in the bedroom and shut the door. Schmidt entered the bedroom a short time later.
He laid down next to K.W. and grabbed her stomach, breasts, and genital area over her
clothes. K.W. told Schmidt to stop and that their relationship was over, pushing him away.
Schmidt left the bedroom and K.W. fell asleep.
During the night, K.W. was awoken by Schmidt lying next to her wearing only his
boxers and holding her in a position where she could not move. Schmidt told K.W. that he
loved her. K.W. told Schmidt to stop. Schmidt forced his hand down K.W.’s pants and
digitally penetrated her. K.W. again told him to stop and tried to grab his hand . But
Schmidt did not stop until he eventually passed out. In the morning K.W. called the police.
She informed police she was afraid of Schmidt but did not want to get him in trouble.
Schmidt told the officers he did not remember what happened and said it was possible he
groped K.W. but stopped when she told him to stop.
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Respondent State of Minnes ota charged Schmidt with third -degree criminal sexual
conduct. After his first appearance, the district court released Schmidt from custody with
conditions requiring him to abstain from drugs and alcohol, report to a probation agent,
follow the recommendations of his chemical use assessment, and have no contact with
K.W. The district court issued a no- contact order (NCO).
In January 2021, Schmidt entered a Norgaard guilty plea.1 In exchange for the plea,
the state agreed not to charge NCO violations for calls Schmidt made to K.W. The parties
agreed Schmidt would complete a chemical-dependency evaluation . The state also agreed
to release Schmidt from custody directly to an inpa tient chemical-dependency treatment
facility if a bed became available. Last, the parties agreed that if Schmidt violated the
terms of his release conditions, left treatment, contacted K.W., obtained new criminal
charges, or failed to appear for sentencin g, he would have violated the plea agreement and
would be returned to jail immediately.
The state released Schmidt from custody to attend residential treatment at Twin
Town Treatment Center (Twin Town). Schmidt completed the program and Twin Town
recommended he continue treatment at Restoration Counseling & Community Services
(RCCS). The district court modified Schmidt’s release order to allow him to attend RCCS
and follow the recommendations of his chemical -dependency evaluation. On April 9,

1 A Norgaard plea is a guilty plea in which a defendant “plead[s] guilty even though he
. . . claims a loss of memory . . . regarding the circumstances of the offense. ” State v.
Ecker, 524 N.W.2d 712, 716 (Minn. 1994).
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Schmidt vio lated his release conditions when he left RCCS treatment without staff
approval, failed to contact his probation agent, and failed to report to jail.
K.W. filed a request for the NCO to be lifted and asked for Schmidt’s charge to be
stayed or dismissed aft er he obtained one year of sobriety. K.W. stated, “I do not feel
grabbing me in bed was sexual assault as we did live together and our relationship was on
again off again, he needed treatment, help.” The district court denied the request based on
Schmidt’s recent violation of the release conditions and issued a warrant for his arrest.
On April 13, Schmidt enrolled himself in NuWay intensive outpatient treatment.
Schmidt was apprehended on the warrant and the district court held a hearing on his release
condition violations . The district court allowed Schmidt out of custody to continue
treatment at NuWay “on a short leash.” A short time later , the state learned that , while
Schmidt was in custody before the hearing, he made two phone calls to K.W . in violation
of the NCO and his release conditions . When the district court learned o f this violation, it
issued another arrest warrant for Schmidt. Police apprehended Schmidt at K.W.’s
residence, constituting another violation. After a hearing on these violations, t he district
court again released Schmidt to continue treatment.
Schmidt tested positive for alcohol on June 21. The district court ordered Schmidt
to be held in custody. In July, Schmi dt made several calls to K.W. from jail. The state
charged Schmidt with six NCO violations in a separate criminal case.
In February 2022, the district court held a sentencing hearing. The district court
considered arguments from both parties, a statement from K.W., and Schmidt’s
presentence investigation report (PSI) . Schmidt moved for a downward dispositional
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departure from the presumptive prison sentence to attend a dual -diagnosis treatment
program for mental health and chemical dependency. Schmidt argued his untreated
mental-health concerns, stemming from the death of his son in 2017 and his divorce,
contributed to his alcohol abuse . K.W. read an impact statement, indicating that the state
“grossly exaggerated” Schmidt’s conduct and requ ested that he receive treatment rather
than jail time. The district court determined there were not substantial and compelling
reasons to depart from the presumptive sentence and sentenced Schmidt to 48 months in
prison.
This appeal follows.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses and seek to “maintain uniformity, proportionality, rationality, and predictability
in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). A district court may depart from the
presumptive guidelines sentence only when there are “identifiable, substantial, and
compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (2020);
see also State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[D]epartures from the guidelines
are discouraged and are intended to apply to a small number of cases.” State v. Solberg ,
882 N.W.2d 618, 623 (Minn. 2016). We review a district court’s decision on a sentencing
departure motion for an abuse of discretion. Id.
A downward dispositional departure may be based on a defendant ’s “particular
amenability to individualized treatment in a probationary setting.” State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982); see also Minn. Sent’g Guidelines 2.D.3.a.(7) (2020). But
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“merely being amenable to probation” is insufficient ; “requiring a defendant to be
particularly amenable to probation . . . distinguishes the defendant from most other s and
. . . presents the substantial and compelling circumstances that are necessary to justify a
departure.” State v. Soto, 855 N.W.2d 303, 308- 09 (Minn. 2014). Factors that may show
a defendant’s “particular amenability” to probation include “the defen dant’s age, his prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family.” Trog, 323 N.W.2d at 31.
But even if a district court finds the existence of one or more factors, the district
court need not depart. Wells v. State, 839 N.W.2d 775, 781 (Minn. App. 2013), rev. denied
(Minn. Feb. 18, 2014). This court affirms “the imposition of a presumptive guidelines
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) , rev. denied (Minn. Sept. 17, 2013). A district
court’s refusal to depart from the guidelines will be reversed only in “rare” cases. Kindem,
313 N.W.2d at 7.
Schmidt contends that he is particularly amenable to individualized treatment in a
dual-diagnosis program to simultaneously treat his mental -health and chemical -
dependency issues because his alcohol abuse relates to underlying mental -health
challenges. At sentencing, Schmidt a sserted that Twin Town, RCCS, and NuWay were
not dual -diagnosis programs and lacked the individualized mental -health treatment
Schmidt requires. The district court acknowledged that Schmidt’s PSI conveyed that he
had been diagnosed with PTSD, depression, and anxiety. The district court noted Schmidt
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was aware of his underlying mental -health issues when he was in chemical -dependency
treatment and questioned why Schmidt failed to seek mental -health treatment . Schmidt
told the PSI evaluator that he was not seeing a therapist , although one was recommended,
because he “[had not] felt like [he] wanted to go.” The district court asked Schmidt what
he had done since the PSI to address his mental healt h. Schmidt stated that he had been
“talking to therapists” over the past year but only once per month to obtain and adjust his
medications. We discern no abuse of discretion when the district court declin ed to find
that these facts “set [Schmidt] apart” and showed that Schmidt is “particularly amenable”
to treatment when he was unmotivated to seek necessary mental -health treatment until the
time he was sentenced. Soto, 855 N.W.2d at 311.
Schmidt also argues his successful treatment for alcohol abuse at Twin Town proves
his particular amenability to treatment at a dual -diagnosis program because he thrived in
Twin Town’s extremely structured program. Though he may have succeeded in his first
treatment setting, the record shows Schmidt struggled to complete and adhere to the
conditions of subsequent treatment programs. Schmidt absconded from treatment at RCCS
without permission from staff, his probation agent, or the district court. While being treated
by a third program, NuWay, Schmidt fa iled to maintain his sobriety and drank alcohol in
violation of his release conditions. At sentencing, the district court considered Schmidt’s
behavior and noted he “left [treatment] but didn’t come back to jail, [he] just went out on
[his] own and did whatever [he] decided to do.” Schmidt argues RCCS and NuWay’s
programs were not as structured as Twin Town and “made it difficult for him to comply
with treatment and his conditions of release.” But Schmidt fails to acknowledge that he
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chose to enroll in N uWay and only participated in treatment programming via Zoom. We
agree with the district court that these are not “substantial and compelling circumstances”
that justify a departure. Id. at 309.
Finally, Schmidt argues his remorse, age, criminal record, family support , and
motivation are factors that indicate he is particularly amenable to individualized treatment
in a probationary setting. In his PSI and at sentencing, Schmidt stated that he felt “sorry,
remorse, guilt” for the offense and for “disrespecting” the district court. But Schmidt also
minimized the seriousness of his conduct and explained to the PSI evaluator, “In no way
shape or form was I maliciously grabbing her . . . this has all been embellished a bit too
much by [the state].” Schmidt further asserts that because this is his first felony offense at
age 36, he is a “perfect candidate for a dispositional departure.” And Schmidt contends
the support of his mother and half -brother, together with his own motivation to succeed in
treatment, are factors that support his departure motion.
While the district court did not make particular ized findings on these factors, the
record shows the district court “carefully evaluated all the testimony and information
presented” in considering the P SI, the arguments of the parties, K.W.’s statement, and
letters of support from Schmidt’s family before making its sentencing determination.
Johnson, 831 N.W.2d at 925; see also State v. Van Ruler , 378 N.W.2d 77, 80- 81 (Minn.
App. 1985) (stating the distr ict court need not explain its rationale against departure when
it imposes a presumptive sentence). The district court acted within its discretion in denying
Schmidt’s motion. Schmidt benefitted from opportunities to obtain necessary treatment
during this case. And he also incurred several conditional -release violations when he
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absconded from his second treatment center, contacted K.W. repeatedly via phone from
jail, stayed in her residence despite the district court’s NCO and repeated warnings, and
failed to maintain his sobriety. The district court reasoned that Schmidt’s repeated
conditional-release violations did not establish he was amenable to probation.
This is not a “rare” case justifying reversal of the district c ourt’s decision not to
depart from the presumptive sentence . Kindem, 313 N.W.2d at 7. On this record, the
district court did not abuse its discretion when it determined Schmidt failed to establish
substantial and compelling circumstances in favor of a downward departure and imposed
the presumptive 48-month prison sentence.
Affirmed.