This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Clifford Lorenzo James-El,
Filed July 2, 1996
Hennepin County District Court
File No. 95047883
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Jean E. Burdorf, Staff Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Melissa Sheridan, Assistant Public Defender, Paul J. Williams, Certified Student Attorney, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)
Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Holtan, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his sentence for third-degree assault, claiming that the sentencing court miscalculated his criminal history score. He contends that the sentencing court should have designated his two Illinois convictions for rape to be the equivalent of Minnesota convictions for third-degree criminal sexual conduct. Instead, the court determined that the Illinois rape convictions were comparable to convictions for criminal sexual conduct in the first degree under Minnesota law, resulting in a greater criminal history. We affirm.
D E C I S I O N
The sentencing court has the discretion to designate the weight accorded to out-of-state offenses for purposes of computing a defendant's criminal history score and will not be reversed absent abuse of that discretion. Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).
Both parties agree that the statute under which appellant was convicted for both rapes in Illinois provided:
A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape.
Ill. Ann. Stat. ch. 38, ' 11-1(a) (Smith-Hurd 1979). Appellant contends this Illinois statute compares best to Minnesota's statute defining criminal sexual conduct in the third degree:
A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if * * * the actor uses force or coercion to accomplish the penetration.
Minn. Stat. ' 609.344, subd. 1(c) (1994).
Appellant argues that because the definition of the Illinois conviction appears to be basically the same as the definition of third-degree criminal sexual conduct in Minnesota, the sentencing court cannot go beyond the definition of the out-of-state conviction and review the conduct underlying the Illinois convictions to determine which offense definition would apply in Minnesota. We disagree. The Illinois statutory scheme for rape offenses is not identical to the Minnesota statutes governing similar conduct. In addition to the definition of the out-of-state offense, the sentencing court must also consider the out-of-state sentence and the nature of the out-of-state offense when calculating the criminal history score attributable to that offense. Hill, 483 N.W.2d at 61.
The Minnesota statute defining first-degree criminal sexual conduct uses the same "force or coercion" language as the third-degree criminal sexual conduct statute and is similar to the "force and against her will" language in the Illinois statute. A defendant is guilty of first-degree criminal sexual conduct if:
[T]he actor causes personal injury to the complainant, and either of the following circumstances exist:
(i) the actor uses force or coercion to accomplish sexual penetration; or
(ii) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.
Minn. Stat. ' 609.342, subd. 1(e) (1994).
First-degree criminal sexual conduct includes an additional element of personal injury -- defined as any "physical pain or injury, illness, or any impairment of physical condition" -- that is not contained in the Illinois statute under which appellant was convicted. Compare Minn. Stat. '' 609.341, subd. 8, and 609.02, subd. 7 (1994) (defining "personal injury") with Ill. Ann. Stat. ch. 38, ' 11-1(a).  Because bodily harm was not an element of the Illinois rape statutes that governed appellant's two Illinois offenses committed prior to July 1, 1984, it was certainly appropriate for the sentencing court here to compare the Illinois offenses with the first-degree Minnesota offense by looking at the undisputed facts of personal injury underlying appellant's Illinois convictions.
Our review of the facts underlying the Illinois convictions reveals that appellant's conduct in those offenses constitutes first-degree criminal sexual conduct under Minnesota law.  Because both Illinois rapes involved forcible penetration and resulted in personal injury to the victims, the sentencing court acted well within its discretion in determining that the Minnesota equivalent to appellant's Illinois rape convictions is criminal sexual conduct in the first degree under Minn. Stat. ' 609.342, subd. 1(e)(i).
A review of appellant's Illinois sentences further supports the sentencing court's decision. When determining the criminal history score for prior out-of-state convictions, the sentencing court "should also consider * * * `the sentence received by the offender.'" Hill, 483 N.W.2d at 61 (quoting Minn. Sent. Guidelines cmt. II.B.505). At the time of appellant's first Illinois rape, the minimum term of sentence was four years. Ill. Ann. Stat. ch. 38, ' 11-1(c) historical notes (Smith-Hurd 1979). The minimum allowable sentence for rape at the time of appellant's second Illinois offense was six years. Ill. Ann. Stat. ch. 38, '' 11-1(c) (rape is "Class X felony"); 1005-8-1(a)(3) (Smith-Hurd 1982) (providing for determinate sentence of 6-year minimum and 30-year maximum for class X felony). Appellant received an indeterminate sentence of 5-10 years in prison for the 1975 Illinois rape conviction and a determinate sentence of 22 years for the 1984 offense.
Appellant's Illinois sentences are far in excess of sentences for third-degree criminal sexual conduct in Minnesota, where first and second convictions would carry presumptive probationary sentences of 18 and 23 months, respectively. See Minn. Sent. Guidelines IV (sentencing guidelines grid). Accordingly, we conclude that appellant's Illinois sentences more closely compare to Minnesota sentences for first-degree criminal sexual conduct, where the first and second convictions carry presumptive prison terms of 86 and 98 months, respectively. Id.
Finally, first-degree criminal sexual conduct is a severity level VIII offense. Minn. Sent. Guidelines IV. The guidelines assign 2 points to prior felony sentences of a severity level VIII. Minn. Sent. Guidelines II.B.1.a. The sentencing court properly assigned two points to each of appellant's Illinois convictions and correctly computed his criminal history score at five points.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.
 Since the time appellant committed the rapes in Illinois, the Illinois statutes have been amended to include an element of personal injury. See Ill. Ann. Stat. ch. 720, para. 5/12-14 historical notes (Smith-Hurd 1993) (amendment effective July 1, 1984, providing for an offense of "[a]ggravated criminal sexual assault" which included an element of "bodily harm to the victim").
 Appellant has not contested the state's offer of proof regarding the underlying facts of his prior convictions.