         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 22, 2005

                STATE OF TENNESSEE v. PAUL NEIL LAURENT

                     Appeal from the Criminal Court for Davidson County
                        No. 2003-B-1165    Mark J. Fishburn, Judge


                   No. M2005-00289-CCA-R3-CD - Filed February 27, 2006


DAVID G. HAYES, J., dissenting.

        The majority affirms consecutive sentences based upon a finding that the appellant’s criminal
history is extensive. T.C.A. § 40-35-115(b)(2). The pre-sentence report reflects no documentation
of a prior conviction of any type. The appellant’s statements to the pre-sentence officer indicate
excessive alcohol and drug abuse and that he completed a drug and alcohol treatment program in
1983. Based upon the appellant’s self-reporting of drug use, the majority concludes that consecutive
sentences are warranted. I am unable to join with the majority in concluding that a defendant’s self-
reporting of uncharged alcohol or drug abuse will warrant consecutive sentences. This information
is sought in the pre-sentence report for the purpose of fashioning an individualized sentence under
sentencing guidelines, not for purposes of gathering incriminating evidence. To utilize the
offender’s statements within the report for increased penal sanctions is counterproductive in that it
discourages truthfulness and is inconsistent with the purposes of the pre-sentence report. If the State
wishes to introduce evidence of uncharged criminal activity, then it may do so; however, the
defendant should not be penalized for candor.

       Moreover, this case illustrates a serious void which exists in the structure of consecutive
sentencing in this state. The genesis of our consecutive sentencing classifications stem from our
supreme court’s holding in Gray v. State, 538 S.W.2d 391 (Tenn. 1976). The classifications in Gray
included: (1) the persistent offender; (2) the professional criminal; (3) the multiple offender; (4) the
dangerous mentally abnormal person; and (5) the dangerous offender. Id. at 393.

         The Sentencing Commission comments express that “[t]he first four criteria [in T.C.A. § 40-
35-115] were taken directly from Gray v. State . . .” These are: (1) the professional criminal; (2)
the defendant whose record of criminal activity is extensive; (3) the dangerous mentally abnormal
person; and (4) the dangerous offender. See T.C.A. § 40-35-115(b)(1)-(4) (2003). The Sentencing
Commission comments further note that the persistent offender criteria adopted in Gray was deleted
by the 1989 Sentencing Act. The result, however, which has followed is that while each of the four
criteria was perhaps intended to be the same, the criteria of the “multiple offender” in Tennessee
Code Annotated section 40-35-115(b)(2) has clearly received a different interpretation than its
multiple offender counterpart in Gray. See State v. Rickey Crawford, No. 02C01-9806-CR-00169
(Tenn. Crim. App. at Jackson, May 12, 1999) (Tipton, J., separate concurring, joined by Lafferty,
S.J.).

         Both Gray and Tennessee Code Annotated section 40-35-115(b)(2) define the multiple
offender as one whose record of criminal activity is great. Gray, 538 S.W.2d at 393. Every appellate
decision which has examined the phrase “record of criminal activity” since the 1989 enactment of
40-35-115(b)(2) has done so with reference to the offender’s prior record of criminal activity. See
State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999) (discussing application of T.C.A.
§ 40-35-115(b)(2) following review under Gray and 1989 Sentencing Act.) In defining the term
“record of criminal activity,” Gray instructs, “[t]he prior record of the multiple offender may have
been good, but the crimes for which he has been convicted indicate criminal activity so extensive
and continuing for such a period of time as to warrant consecutive sentencing.” Gray, 538 S.W.2d
at 393. Additionally, Gray provides that the definition of a multiple offender is consistent with the
multiple offender definition contained in the Model Penal Code. Id. (citing Model Penal Code §
7.03). Indeed, all four consecutive sentencing categories of Gray were adopted directly from the
model code.

        The Model Penal Code describes the multiple offender as an offender who is before the court
to be sentenced for more than one felony. This category recognizes that the multiple offender
presents a legitimate concern that concurrent sentences will not reflect the combined gravity of the
actions for which the defendant is to be penalized. Comments, Model Penal Code § 7.03. Thus, if
we accept Gray’s pronouncement that the definition of a multiple offender is derived from the Model
Penal Code, and that the “prior record of the multiple offender may have been good,” then it
necessarily follows that the reference to “extensive criminal activity” refers to current activity from
the multiple convictions for which the defendant is being sentenced. This position is further
reinforced by the fact that the persistent offender criteria in Gray, deleted by the 1989 Sentencing
Act, was based upon a history of prior criminal convictions. Thus, it would be illogical to have two
consecutive sentencing categories based upon the same criteria. The result is that the persistent
offender under Gray, which was based on a history of prior convictions, is now the multiple offender
under Tennessee Code Annotated section 40-35-115(b)(2), and the multiple offender as
contemplated by Gray no longer exists.

        The end result is that the appellant in this case, who would have qualified for consecutive
sentences as a multiple offender under Gray, now escapes consecutive sentencing unless he, per
chance, qualifies under some other consecutive sentencing criteria. This sentencing void effectively
provides a free pass to the multiple offender whose prior record may have been good, “but the crimes
for which he has been convicted indicate criminal activity so extensive and continuing for such a
period of time as to warrant consecutive sentencing,” as recognized by Gray. Moreover, the loss of
the multiple offender category under Gray does little to deter the commission of multiple crimes
stemming from a single criminal episode.

       Because the appellant fails to meet any of the defined statutory criteria for consecutive
sentencing, I am unable to join with the majority with regard to this issue.

                                                       ____________________________________
                                                       DAVID G. HAYES, JUDGE

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