The opinion
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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