This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Michael Shawn Hagwood, petitioner,
State of Minnesota,
Olmsted County District Court
File No. K9962575
Thomas G. Dunnwald, 400 Flour Exchange, 310 South 4th Street, Minneapolis, MN 55415 (for appellant)
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Lisa M. Needham, Certified Student Attorney, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street SE, Rochester, MN 55904 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.
Appellant challenges the denial of his postconviction petition on the ground that his due-process right was violated because a co-defendant received a lesser sentence. Because the upward departure in appellant’s sentence was properly based on a valid aggravating factor and because co-defendants convicted of similar offenses are not entitled to equal sentences, we affirm.
This case arises out of a racially-based altercation that occurred on August 27, 1996, in Rochester. A group that included appellant Michael Shawn Hagwood was angry about an assault on one of their friends the previous night. Armed with baseball bats, the group drove to an apartment complex, where 12-year-old Somali immigrant Abdul Ali and six of his friends were standing in the parking lot. Appellant’s group yelled profanities and racial epithets at Ali and his friends, and they responded with profanities. Appellant’s group asked Ali’s group about the incident the previous night, and a member of Ali’s group stated that he knew nothing about it. At that point, a member of Ali’s group threw a golf club at appellant’s group. Appellant’s group began to run toward Ali’s group, and appellant sprayed mace. Ali’s friends ran away, but Ali was too “shocked” to move. Appellant and approximately four to five others began to beat Ali with baseball bats. They initially hit Ali’s legs, causing him to slump against a car, and then continued to strike him in his face and mouth. When a female from Ali’s group appeared and screamed at them to stop hitting Ali, appellant and his group ran to their cars and drove off. Ali, who was severely beaten in the attack, lost eight permanent teeth.
Appellant was charged with one count of first-degree assault pursuant to Minn. Stat. § 609.221 (1994), one count of second-degree assault pursuant to Minn. Stat. § 609.222, subd. 1 (1994), and one count of riot in the second degree pursuant to Minn. Stat. § 609.71, subd. 2 (1994).
A trial commencing in late 1996 ended in a mistrial, but a jury convicted appellant of all charges in early 1997. Appellant moved for a new trial based on alleged communications between the judge and jury and a disturbance outside the courtroom during appellant’s attorney’s closing statement. The trial court denied appellant’s motion and imposed a 135-month sentence, a 25-month upward departure from the presumptive 110-month sentence. The sentencing court stated that the upward departure was based on the particular vulnerability of the victim due to his age, the fact that appellant committed the assault in a group of three or more, and the fact that appellant treated Ali with particular cruelty. The court also noted appellant’s criminal history score of two and his history of assaultive behavior. Because appellant had been unwilling to participate in a presentencing psychological evaluation, the court stated that there was no way to tell whether or not appellant would reoffend.
Appellant challenged his sentence and the denial of his motion for a new trial in this court. But he subsequently dismissed that appeal and petitioned for postconviction relief, seeking an evidentiary hearing relating to the disturbance and the juror communications. The postconviction court denied appellant’s petition. Appellant filed a second appeal with this court, challenging his conviction, sentence, and the denial of postconviction relief. Appellant argued that his participation with three or more individuals and his particular cruelty to the victim were not valid factors to support an upward departure. We affirmed the trial court in all respects. Hagwood v. State, No. C8‑98-1318, 1999 WL 185192 (Minn. App. Apr. 6, 1999), review denied (Minn. June 29, 1999).
Jason Peaslee, a member of the group who was convicted of the same offenses, received his sentence after appellant filed his second appeal in this court. In contrast to appellant, Peaslee had a criminal history score of one, which mandated a presumptive sentence of 93-103 months. Peaslee received a 93‑month sentence. Once appellant learned of Peaslee’s sentence, he petitioned for postconviction review of his sentence, alleging a due-process violation. Following a hearing, the postconviction court denied appellant’s petition. This appeal follows.
This court reviews a postconviction court’s findings to determine whether they have sufficient support in the record to sustain them. We will uphold a postconviction court’s decision absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). “[A] postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted).
Courts may only depart from the sentencing guidelines if aggravating or mitigating factors are present. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A decision to depart from the sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). In determining whether to issue a sentencing departure, a trial court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).
Appellant does not challenge his sentence directly in this appeal. He raised that issue in an earlier appeal to this court and we affirmed the trial court. Hagwood v. State, No. C8-98-1318, 1999 WL 185192, *5 (Minn. App. Apr. 6, 1999), review denied (Minn. June 29, 1999). Instead, he now argues that Peaslee’s lesser sentence renders his own sentence improper.
We begin by noting that Peaslee’s sentence is not at issue in this appeal. Any challenge to Peaslee’s sentence must come from Peaslee, himself. Appellant now contends that the trial court impermissibly imposed an upward durational departure for appellant’s sentence based on offender-related factors. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (noting that offender-related factors cannot support upward durational departures, but that offense-related factors can support both upward durational and dispositional departures). This argument is not an accurate reflection of the record.
The trial court imposed an upward departure on appellant’s sentence for an offense-related factor: the victim’s young age. Minnesota recognizes victim vulnerability due to young age as a valid aggravating factor. See Minn. Sent. Guidelines II.D.2.b.(1) (age of victim is an aggravating factor if offender knew or should have known victim was vulnerable due to age); State v. Luna, 320 N.W.2d 87, 90 (Minn. 1982) (13-year-old rape victim particularly vulnerable); State v. Strommen, 411 N.W.2d 540, 544 (Minn. App. 1987) (16-year-old rape victim particularly vulnerable), review denied (Minn. Oct. 28, 1987).
Further, appellant does not have a due-process right to receive the same sentencing treatment that his co-defendant received. Fairness and uniformity in sentencing requires “comparing the sentence of the defendant with those of other offenders” but does not require a trial court to compare co-defendants’ sentences. State v. Vasquez, 330 N.W.2d 110, 112 (Minn. 1983). Here, the trial court compared appellant’s conduct with that of other offenders and found that the young age of the victim warranted the 25-month upward departure. Although Peaslee did not receive an upward departure, he did receive a presumptive sentence that was consistent with his criminal history score. The trial court exercised proper discretion.
 Appellant’s prior offenses include one instance of breaking and entering, two instances of larceny of a motor vehicle, and one instance of assault with a deadly weapon.