                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                              APRIL SESSION, 1999
                                                              FILED
                                                                 May 12, 1999

                                                              Cecil Crowson, Jr.
STATE OF TENNESSEE,                )
                                   )                         Appellate Court Clerk
              Appellee,            )      No. 02C01-9806-CR-00169
                                   )
                                   )      Shelby County
v.                                 )
                                   )      Honorable Joseph B. Brown, Jr., Judge
                                   )
RICKEY CRAWFORD,                   )      (Theft of property over $1000; criminal
                                   )      attempt to commit first degree murder)
              Appellant.           )



                                CONCURRING OPINION



              I concur with the result and most of the reasoning in Judge Hayes’

opinion. I respectfully differ in my analysis of the circumstances that allow for

consecutive sentencing. First, as for the defendant being a dangerous offender under

Tenn. Code Ann. § 40-35-115(b)(4), I note that the trial court found this circumstance to

apply because of the defendant’s history of violent crime. I agree with that assessment.




              Second, I disagree with my colleague’s conclusion that Tenn. Code Ann.

§ 40-35-115(b)(2), relative to “an offender whose record of criminal activity is

extensive,” does not apply in this case. Judge Hayes’ opinion states that the statutory

and case law show that this subsection applies only to extensive criminal activity

relating to the offenses for which the defendant is being sentenced, not relating to his

prior record. However, I believe such a limited view ignores the wording of the statute

and goes against the great majority of the Tennessee cases in which 115(b)(2) has

been applied.
              First, I acknowledge that in Gray v. State, 538 S.W.2d 391, 393 (Tenn.

1976), our supreme court used the description of “an offender whose record of criminal

activity is extensive” for a “multiple offender” relative to persons who commit multiple

offenses while having no prior convictions. Also, I acknowledge that the Sentencing

Commission Comments to Tenn. Code Ann. § 40-35-115 state that the “persistent”

offender category, the designation in Gray for persons with previous convictions, was

not placed in the consecutive sentencing statute. In this respect, I acknowledge that

Gray and the Comments, considered together, leads one to interpret the statute as

Judge Hayes has.



              However, since the 1989 Sentencing Act became effective, all reported

and most unreported cases of this court have consistently interpreted Tenn. Code Ann.

§ 40-35-115(b)(2) to apply to offenders who have an extensive history of criminal

convictions and activities, not just to a consideration of the offenses before the

sentencing court. See, e.g., State v. Baker, 956 S.W. 8, 18 (Tenn. Crim. App. 1997);

State v. Ensley, 956 S.W.2d 502, 514 (Tenn. Crim. App. 1996); Powers v. State, 942

S.W.2d 551, 558 (Tenn. Crim. App. 1996); State v. Nix, 922 S.W.2d 894, 904 (Tenn.

Crim. App. 1995); State v. Tuttle, 914 S.W.2d 926, 933 (Tenn. Crim. App. 1995); State

v. Marshall, 888 S.W.2d 786, 787 (Tenn. Crim. App. 1994); State v. Chrisman, 885

S.W.2d 834, 839 (Tenn. Crim. App. 1994); Manning v. State, 883 S.W.2d 635, 640

(Tenn. Crim. App. 1994); State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991).

The interpretation used in these cases is supported by a reasonable understanding of

the language of 115(b)(2), i.e., an offender’s record of criminal activity denotes his or

her history of criminal activity. Moreover, this interpretation logically fills the gap

between the professional criminal, see Tenn. Code Ann. § 40-35-115(b)(1), and the

multiple offender with no previous criminal history as discussed by the majority opinion.




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              I believe that this court’s interpretation of 115(b)(2) for the past eight

years, upon which trial courts and parties have relied, now carries the weight of the

doctrine of stare decisis, embodying a judicial policy to adhere to previous court

decisions. This doctrine is based upon the public’s need to rely upon court decisions,

and it recognizes that rights may accrue in reliance upon those decisions. It has

particular importance when a decision involves the interpretation of a statute. See, e.g.,

Monday v. Millsap, 197 Tenn. 295, 298, 271 S.W.2d 857, 858 (1954). In this respect,

holding today that 115(b)(2) does not relate to prior histories of criminal activity will

result in unnecessary litigation in the future regarding formerly sentenced people. Also,

the legislature has convened in regular sessions during the past eight years without

electing to modify this court’s interpretation of 115(b)(2). Because this interpretation is

rational and functional for the criminal justice system, stare decisis should prevail.

Under these circumstances, I would consider us bound to apply the same interpretation

in the present case. I am authorized to state that Senior Judge Lafferty concurs in this

opinion.



                                                   _______________________________
                                                   Joseph M. Tipton, Judge




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