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This opinion is nonprecedential except as provided by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
A22-0352

State of Minnesota,
Respondent,

vs.

Suavay Pierre Sidney,
Appellant.

Filed December 5, 2022
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-20-4116

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

John Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Hooten,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from a judgment of conviction for second -degree assault,
appellant challenges the district court’s denial of his motion for a downward dispositional
departure from the presumptive sentence. Appellant raises one issue: whether the district
court violated due process by considering unreliable hearsay in the
presentence-investigation (PSI) report1 before imposing a presumptive prison sentence of
60 months. We affirm.
FACTS
In June 2020, appellant Suavay Pierre Sidney pulled out a firearm and fired one shot
during an argument with his ex -girlfriend. On the first day of his scheduled jury trial,
Sidney pleaded guilty to second-degree assault with a dangerous weapon under Minn. Stat.
§ 609.222, subd. 1 (2018). In the plea agreement, the state agreed to dismiss three other
counts and that Sidney could move for a downward dispositional departure. The district
court deferred acceptance of Sidney’s guilty plea, ordered a PSI report, and set a sentencing
date.2

1 This opinion uses the term “PSI report” to refer to the presentence-investigation report
described in both Minn. Stat. § 609.115 and Fed. R. Crim. P. 32(d). For purposes of this
opinion, they are equivalent.

2 Shortly after the plea hearing, Sidney moved to withdraw his guilty plea. After a hearing,
the district court determined that “it would not be fair and just to allow Sidney to withdraw
his guilty plea” and denied the motion.
3
The PSI report summarized the “official version” of ten prior convictions, including
six domestic-violence- related offenses. The PSI report discussed mitigating factors
including the victim’s statement that Sidney “made a mistake,” and she “would not like to
see him go to jail,” and his probation officer’s recommendation that he be continued on
probation. The PSI report noted that Sidney’s presumptive sentence under the Minnesota
Sentencing Guidelines (guidelines) was 60 months, with a range of 52 to 71 months. The
PSI report recommended an executed guidelines sentence of 60 months.
Before the sentencing hearing, Sidney moved for a downward dispositional
departure, arguing that he was “particularly amenable to treatment” under “probationary
supervision.” Sidney cited his probation officer’s statement that he was “very much”
supportive of a dispositional departure; Sidney’s ongoing participation in a
domestic-violence program; the support of a former girlfriend (the mother of his youngest
son); and Sidney’s desire “to change” and “to learn healthier, more respectful, and
respectable relational skills.” Sidney attached a letter from his therapist stating that
individual therapy would “be more conducive to lasting prosocial changes in [Sidney’s]
life than a correctional response” and a letter from his former girlfriend stating that it would
“change a lot in [Sidney’s] children’s lives to not have him around like they do now.”
At the sentencing hearing, the district court began by asking the parties if they had
“additions or corrections” to the PSI report —they had none. The prosecuting attorney
opposed Sidney’s motion, relying on Sidney’s seven prior felony convictions, of which six
involved domestic violence, the escalation of Sidney’s violent behavior as shown by his
use of a gun in the current offense, and Sidney’s past failures on probation. The prosecuting
4
attorney argued that Sidney’s “ongoing pattern of violence and harassment,” despite being
given “a number of chances . . . to better himself,” proves “he’s not particularly amenable
to probation.” Arguing for a dispositional departure, Sidney’s attorney contended that the
probation officer’s and therapist’s statements show Sidney “is amenable to probation” and
asked the district court to recognize “that he is trying to change.”
The district court denied Sidney’s motion for a downward dispositional departure,
accepted the guilty plea, and imposed a sentence of 60 months in prison. When discussing
Sidney’s motion, t he district court determined that Sidney failed to show he was
“particularly amenable to probation” and cited three reasons. First, the district court
identified Sidney’s history of felony domestic -violence-related offenses, some of which,
“including this case,” involved repeat victims. Although the district court acknowledged
the victim’s request that Sidney be released on probation, the district court stated its
public-safety concern that if Sidney was put on probation, “there will be somebody else
that becomes a victim.”
Second, the district court referred to Sidney’s “past performance on probation”
involving “at least two or more probation violations” and noted that Sidney was “on
probation at the time that [he] committed this offense.” Third, the district court stated that,
along with Sidney’s criminal history, it was persuaded “probably more than anything else”
by the “circumstances of this offense,” which showed an “escalation in [Sidney’s]
behavior.” The district court observed that this offense, “for the first time in [Sidney’s]
history, involved a firearm,” the “actual discharge of a firearm,” and that Sidney’s conduct
endangered the victim and other bystanders.
5
Sidney appeals.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Sent’g Guidelines 2.C.1 (Supp. 2019). The district court must impose the
presumptive sentence unless “there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp. 2019). Under
such circumstances, the district court “may depart from the presumptive disposition or
duration.” Id. “A dispositional departure places the offender in a different setting than that
called for by the presumptive guidelines sentence,” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016)—in most cases, probation instead of prison. A downward dispositional
departure may be warranted if the defendant is “particularly amenable to probation.” Minn.
Sent’g Guidelines 2.D.3.a.(7) (Supp. 2019). When determining a defendant’s particular
amenability to probation, the district court may consider the defendant’s age, prior record,
remorse, cooperation, attitude in court, and the support of friends and family. State v. Trog,
323 N.W.2d 28, 31 (Minn. 1982).
The district court has “great discretion in the imposition of sentences.” State v. Soto,
855 N.W.2d 303, 307- 08 (Minn. 2014). Even if there are grounds that would justify
departure, appellate courts will “not ordinarily interfere” with a presumptive sentence. 3

3 Although the PSI report, the district court, and the parties refer to Sidney’s presumptive
sentence under the guidelines, we note that Minn. Stat. § 609.11 (2018) applies to Sidney’s
sentence. See Minn. Sent’g Guidelines 2.E.2.b (Supp. 2019). Section 609.11 provides a
mandatory minimum sentence for defendants convicted of second-degree assault who “had
in possession or used . . . a firearm.” Minn. Stat. § 609.11, subd. 5(a) (referring to the
offenses listed in subdivision 9, which include second-degree assault). Even if an offender
6
State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Only “a rare case” will warrant
reversal of the district court’s refusal to depart. Id.
Sidney argues that the district court erred by denying his departure motion based on
hearsay in the PSI report. Sidney claims the descriptions of his past convictions in the PSI
report are “inflammatory blurbs” consisting of unreliable hearsay. Sidney also contends
that the Due Process C lause limits the district court’s consideration of unreliable hearsay
at sentencing. The state responds that “there is no rule, statute, or case restricting the PSI
writer’s recitation of a defendant’s criminal history to direct quotations from prior court
proceedings or other nonhearsay information.”
We begin by addressing our standard of review. In his brief to this court, Sidney
contends that “both abuse-of-discretion and plain-error standards apply to this appeal.” We
generally review a district court’s sentencing decision for abuse of discretion. Soto,
855 N.W.2d at 307-08. But we review an unobjected-to error under the plain-error
standard. Moore v. State, 945 N.W.2d 421, 433 (Minn. App. 2020) (citing State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998)), rev. denied (Minn. Aug. 11, 2020). In his brief,
Sidney concedes that during the district court proceedings, he did not object to the hearsay
included in the PSI report and argues for reversal only under the plain-error standard.
Because Sidney’s brief articulates no claim that the district court abused its discretion by

would receive a stayed sentence under the guidelines, the presumptive disposition is prison
commitment, absent a motion by the prosecutor or the court’s own motion to disregard the
mandatory minimum and substantial and compelling reasons to do so. Minn. Sent’g
Guidelines 2.E.2.b; see also Minn. Stat. § 609.11, subd. 8.
7
denying his departure motion, we review Sidney’s appeal solely under the plain-error
standard.
The plain-error standard requires four steps: (a) there must be an error; (b) the error
must be plain; (c) the error must affect substantial rights; and (d) the error must seriously
affect the fairness, integrity, or public reputation of judicial proceedings. State v. Huber,
877 N.W.2d 519, 522- 23 (Minn. 2016). If the appellate court determines that any one of
the plain-error steps is not satisfied, it need not address the others. State v. Lilienthal ,
889 N.W.2d 780, 785 (Minn. 2017). Sidney argues each of these four steps, which we
discuss in turn.
A. The district court did not err by denying Sidney’s departure motion
based on a PSI report that included hearsay.

Under Minn. Stat. § 609.115, subd. 1(a) (2020), the district court must order a PSI
report before sentencing a defendant who is convicted of a felony. “[A] presentence
investigation (PSI) can include facts and details that neither the prosecution nor the defense
would even consider attempting to enter as evidence at trial. Such facts may include
hearsay, second- hand information, opinion, etc., always, of course, subject to the
sentencing judge’s evaluation of weight and credibility.” State v. McCoy, 631 N.W.2d 446,
452 (Minn. App. 2001); see Minn. Stat. § 609.115, subd. 4 (2020) (stating that the PSI
report may not disclose “confidential sources of information unless the court otherwise
directs”). Before the sentencing hearing, the district court must provide the parties’ counsel
with the PSI report. Minn. Stat. § 609.115, subd. 4. After receiving the PSI report, any
8
party may move for a sentencing hearing to challenge or supplement the PSI report. Minn.
R. Crim. P. 27.03, subd. 1(B)(6), (7)(c).
Here, it is not disputed that Sidney’s PSI report included hearsay and was provided
to Sidney before the sentencing hearing, and Sidney neither objected to nor rebutted the
hearsay in the PSI report. Still, Sidney claims the district court erred by relying on the PSI
report in denying his departure motion because the district court stated, just before it
imposed Sidney’s sentence, that it “adopt[ed] all the statements in the presentence report.”
The Minnesota Rules of Evidence limit the admissibility of hearsay evidence, but
Sidney acknowledges that these rules do not apply to ordinary sentencing hearings. See
Minn. R. Evid. 1101(b)(3). Rather, the Minnesota Rules of Evidence apply to Blakely
sentencing trials, in which the court or a jury considers whether aggravating sentencing
factors support an upward sentencing departure. State v. Sanchez- Sanchez, 879 N.W.2d
324, 329-30 (Minn. 2016) (describing sentencing trials required under Blakely v.
Washington, 542 U.S. 296 (2004)); State v. Rodriguez, 754 N.W.2d 672, 683-84 (Minn.
2008). Because Sidney’s sentencing did not involve an upward durational departure, the
Minnesota Rules of Evidence did not apply.
In State v. Adams, the Minnesota Supreme Court held that the introduction of
hearsay evidence at a sentencing hearing did not violate Adams’s due-process rights.
295 N.W.2d 527, 536 (Minn. 1980). The supreme court reasoned that due process is
satisfied when the defendant receives “ notice, an opportunity to be heard, confrontation
and cross-examination of witnesses .” Id. at 535 (citing Specht v. Patterson, 386 U.S. 605
(1967)). Because Adams had received notice of the hearsay evidence before the sentencing
9
hearing and cross-examined witnesses and offered evidence at the sentencing hearing, the
supreme court concluded that the introduction of hearsay evidence did not violate due
process. Though Adams involved a sentencing hearing under a now-repealed statute,
Adams has not been overruled. See Rodriguez, 754 N.W.2d at 680-81 (discussing Adams
as “instructive” and as suggesting that confrontation rights apply at jury sentencing trials).
We see no reason not to follow Adams, and Sidney does not discuss Adams in his brief to
this court.
Sidney relies on two cases in which the Ninth Circuit determined the district court
violated an appellant’s due-process rights by imposing a sentence based on unreliable
hearsay in a PSI report, U.S. v. Corral, 172 F.3d 714, 716 (9th Cir. 1999), and U.S. v.
Huckins, 53 F.3d 276, 280 (9th Cir. 1995). The Ninth Circuit has held that due process
requires that “some minimal indicia of reliability accompany a hearsay statement” because
a defendant has a “due process right not to be sentenced on the basis of materially incorrect
information.”4 Huckins, 53 F.3d at 279 (quotation omitted). Sidney argues that “here, the

4 Several other federal appellate courts take a different approach and have concluded that
adequate due-process protections exist when a defendant has the opportunity to object and
respond to the PSI report, whether or not the hearsay in the PSI report contains sufficient
indicia of reliability. See U.S. v. McDonald, 43 F.4th 1090, 1097 (10th Cir. 2022)
(concluding that the district court did not err by relying on the PSI report when the
defendant only objected to the “credibility or reliability of a source or information” in the
PSI report and not the facts themselves); U.S. v. Sheridan, 859 F.3d 579, 583 (8th Cir.
2017) (“A district court is permitted to rely on . . . uncorroborated hearsay if the defendant
has the opportunity to respond to and rebut the testimony.”); U.S. v. Beckles, 565 F.3d 832,
844 (11th Cir. 2009) (“ Facts contained in a PSI are undisputed and deemed to have been
admitted unless a party objects to them before the sentencing court with specificity and
clarity.” (quotation omitted)).
10
error is the same as in Corral and Huckins [because] the district court based its decision to
deny [his] departure motion . . . on unreliable hearsay.”
We disagree. Corral and Huckins are not analogous to Sidney’s case, and even if
they were, the caselaw is not persuasive. In Corral, the PSI report included a codefendant’s
statement that Corral was the “right hand man” of the conspiracy leader. 172 F.3d at 715.
At sentencing, Corral objected to the codefendant’s statement as unreliable hearsay, but
the district court overruled the objection, denied Corral’s downward-departure motion ,
noted that Corral was “quite active” in the conspiracy, and followed the sentencing
recommendation in the PSI report. Id. On appeal, the government conceded that the
codefendant’s statement was unreliable hearsay and argued the district court did not rely
on the hearsay when imposing Corral’s sentence. Id.
In Huckins, both the government and Huckins objected, at sentencing, to the PSI
report, which included an accomplice’s uncorroborated statements that Huckins was armed
and a similar statement from a witness who “believed” Huckins was armed. 53 F.3d at 278.
Despite the government’s concession that its investigation produced no firearms that
Huckins allegedly possessed, the district court relied on the PSI report in determining that
Huckins probably had a gun and then departed upwards from the guidelines sentencing
range. Id. at 278-79. After concluding that the district courts relied on unreliable hearsay
when sentencing Corral and Huckins, the Ninth Circuit vacated both sentences. Corral,
172 F.3d at 716-17; Huckins, 53 F.3d at 280.
We do not find this caselaw helpful, however, because Sidney’s case materially
differs from Corral and Huckins in at least two ways. First, Sidney did not object to the
11
hearsay in the PSI report, as did Corral and both parties in Huckins. Second, the state does
not concede the unreliability of the hearsay in Sidney’s PSI report, as the government did
in Corral and Huckins. Nor has Sidney established that the hearsay was unreliable or
incorrect. Because the Ninth Circuit’s rule focuses on whether the hearsay is “materially
incorrect,” and this record does not show the hearsay in Sidney’s PSI report was incorrect,
we are not persuaded by Corral or Huckins.5
Sidney claims that “Minnesota Courts adopted” the Ninth Circuit’s requirement that
some minimal indicia of reliability accompany a hearsay statement in a PSI report, based
on this court’s decision in State v. Rodriguez , 738 N.W.2d 422, 430 (Minn. App. 2007),
aff’d on other grounds , 754 N.W.2d 672 (Minn. 2008). We disagree. In Rodriguez, this
court cited the Ninth Circuit rule about hearsay in PSI reports when deciding whether to
extend a defendant’s right to confrontation under Crawford v. Washington, 541 U.S. 36
(2004), to jury sentencing trials. Rodriguez, 738 N.W.2d at 429-31. We did not cite the
Ninth Circuit caselaw in the context of admitting hearsay evidence at ordinary sentencing
hearings. Moreover, the Minnesota Supreme Court granted review in Rodriguez and did
not cite to or rely on Ninth Circuit caselaw. See Rodriguez, 754 N.W.2d 672. Thus, we
decline to conclude that Minnesota has adopted the Ninth Circuit’s
minimal-indica-of-reliability standard.

5 Finally, as discussed below in more detail under the third step of the plain-error test, the
district court did not base Sidney’s sentence on hearsay included in the PSI report, unlike
the district courts in Corral and Huckins.
12
Following Adams, 295 N.W.2d at 535, we conclude that no due-process violation
occurred. Sidney received the PSI report and did not object to the hearsay included or
request to supplement the report. Under similar circumstances, this court has held that a
“failure to contest hearsay information in the presentence investigation at sentencing results
in forfeiture of consideration of the issue on appeal.” State v. Barber, 372 N.W.2d 783, 785
(Minn. App. 1985), rev. denied (Minn. Sept. 19, 1985). But even if we assume this issue
was not forfeited, we conclude that no due-process violation occurred because Sidney had
notice of the hearsay in the PSI report, an opportunity to challenge or supplement the PSI
report, and an opportunity to be heard at the sentencing hearing.
B. The district court did not plainly err by denying Sidney’s departure
motion after considering hearsay in the PSI report.

Because we have rejected Sidney’s argument that a due-process violation occurred,
Sidney has failed to satisfy the first step of plain-error review, and we could end our
analysis. See Lilienthal, 889 N.W.2d at 785. Even if we assume error, however, Sidney
must establish that the error is plain. An error is plain if “it is clear or obvious; usually this
means an error that violates or contradicts caselaw, a rule, or an applicable standard of
conduct.” State v. Vang, 847 N.W.2d 248, 261 (Minn. 2014).
Above, we have explained that Minnesota caselaw does not support Sidney’s claim
of plain error. Sidney nevertheless argues that the district court plainly erred. First, Sidney
cites to State v. Nowacki, 880 N.W.2d 396 (Minn. App. 2016), to argue that we “extended
the protections against unreliable hearsay to probation-revocation proceedings,” which are
“analogous to sentencing proceedings.” But Nowacki involved polygraph tests, which are
13
distinct from hearsay evidence in a PSI report. Polygraph testing “has not been proven
reliable,” and in Nowacki, we extended “longstanding” exclusions on the use of polygraph
results at trial to probation-revocation proceedings. 880 N.W.2d at 400-01. By contrast, the
general prohibition on hearsay evidence at trial is subject to many exceptions. Minn. R.
Evid. 803, 804(b). Also, the permissibility of hearsay in the PSI report is well-established
under Minnesota law. See Minn. Stat. § 609.115, subd. 4; McCoy, 631 N.W.2d at 452 (“[A]
presentence investigation (PSI) can include facts and details that neither the prosecution
nor the defense would even consider attempting to enter as evidence at trial.”) . We
therefore are unpersuaded by Sidney’s argument that Nowacki is analogous.
Second, Sidney argues that the unreliability of the PSI report’s descriptions of his
past convictions “should have been obvious” because the descriptions did not identify a
source other than “the official version.” We disagree. According to statute, the PSI report
may include the defendant’s “criminal record and social history, the circumstances of the
offense and the harm caused by it to others and to the community” as well as “confidential
sources of information” that must not be disclosed without a court order. Minn. Stat.
§ 609.115, subds. 1, 4; see also McCoy, 631 N.W.2d at 452 (stating that the PSI report may
include hearsay). Thus, an unidentified source in the PSI report is not an “obvious”
indicator of unreliability.
We conclude that Sidney fails to show that the district court plainly erred by denying
his departure motion after considering hearsay in the PSI report.
14
C. Sidney’s substantial rights were not affected.
Even if we assume the district court plainly erred by denying Sidney’s departure
motion after considering hearsay in the PSI report, the error did not affect Sidney’s
substantial rights. An error affecting a d efendant’s substantial rights is one that “was
prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741.
Sidney argues that the district court’s decision to deny his departure motion was
based on Sidney’s criminal history, which is “inseverable” from the unreliable hearsay
evidence in the PSI report. We disagree for two reasons. First, the district court may
consider a defendant’s “prior record” in deciding whether to grant a downward
dispositional departure. Trog, 323 N.W.2d at 31. Here, the district court referred to
Sidney’s “criminal history” in concluding that Sidney was not particularly amenable to
probation but did not mention what Sidney identifies as the “inflammatory blurbs” in the
PSI report. The district court cited only very few, undisputed facts of Sidney’s criminal
history: Sidney’s “seven prior felonies”—three of which were domestic assaults, Sidney’s
repeat victims, and Sidney’s “two or more” probation violations.
Second, “more than anything else,” the district court’s denial of Sidney’s departure
motion was based on Sidney’s use of a firearm in this offense. The district court concluded
that this offense showed an “escalation in [Sidney’s] behavior” because “for the first time”
Sidney’s criminal conduct “involved a firearm.” The district court reasoned that public
safety would be “better served” with Sidney in prison for “the period of time that the
guidelines recommend.” See Soto, 855 N.W.2d at 313 (stating that public safety “can be
15
relevant to determining whether a decision to stay a presumptively executed sentence was
an abuse of discretion”).
The district court’s consideration of hearsay in the PSI report did not affect the
sentencing outcome, and thus, Sidney’s substantial rights were not affected. Because
Sidney fails to establish three of the steps in plain-error review, we do not consider the
fourth step.
Affirmed.