### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 24, 2002 Session STATE OF TENN ESSEE v. JAMES ALL EN BAILEY Appeal from the Circuit Court for Cocke County No. 8394-8399 Ben W. Hooper, II, Judge

No. E2001-02443-CCA-R3-CD August 28, 2002

D AVID H. W ELLES , J., d issen ting. DISSENTING OPINION Based on my de novo review of the recor d in this case, I am unable to ag ree that the imposition of consecutive sentences is warranted. Theref ore I respec tfully

dissent from that portion of the opinion which concludes that two of the Def endant’s sentences should be served
co ns ec ut iv el y.
The presentencereport reflects that at the time of sentencing the Defendant was thirty -two yearsoldand unmarried. His formal education ended in the eig hth grade and he has no specialized train ing. His mental capacity is limited. He is physically disabled and apparently

has been disabled all of his life. Because of his disability, he has never maintained regular employ ment. He receives an SSI disability

check each month.-2-

The Defendant has no prior convictions andapparently ha s no prior arrests. The Defendant reported that he spent som e tim e in jail when a juvenile as a result of theft charg es, but the presentence report does not verify this information.

I agree that a sentencing

court may co nsid er the offenses for which a def endant is being sentenced in determining whether the Defendant is an of fender who has an extensive record of criminal activity. The re cord in thi s case do es n ot establish that the Defendant had any record of criminal activity prior

to the arson offenses for which he was sente ncedherein. The question thus becomes whether the Defendant’s seven convictions, for crimes committed within an a

pproximate eleven- month

period, are sufficient to establish a “recor d of criminal activ

ity” which is extensive. I agree that seven felonies c ommitted within an eleven-month peri od is su fficient to establish an extensive record of criminal activity , although perhaps marginally so.

E ven though the Defendant qualifies for conse cutive sentencing, whether to order th e sentences to be served consecutively lies within the discretion of the sentencing court. Our legislature has ackn owledg ed that the S tate’s resources for building and maintaining prisons are limited. See

Tenn. Code Ann. § 40-35-102(5). Our legislature ha s thus recognized that consecutive sentences are generally

warranted for three ty

pes of offenders: (1) offenderswho are dange rous to other individuals, (2) sexual of fende rs who pr

ey upon child

ren and ( 3) offe

nders wh o make the

ir living th rough c rime or ha

ve substa ntial cri minal rec ords.-3-

In determining an appropriate sentence , our legislature has directed that “t he senten ce imposed should be the least severe measure nece ssary to achie ve the purposes for which the sentence is im pos ed. ” Te nn. Co de A nn. § 40 -35 -10 3(4 ). In this case, the Defendant has not heretofore been convicted of a crime. Alth ough serious, I note that the crimes for which he is being sentenced are such that he is by law pre sumed to be eligible for an alternative sentenc e, in view of his status of a standard offender. Tenn. Code Ann. § 40-35-102( 6).

As pointed out by Judge Riley , our review i s de novo without a p resumptio n of corr

ectness . Based upon my review of the entire record in this case, I would order that the Defendant’s sentence s be se rv ed co nc ur re nt ly.

___________________________________ DAVID H. WEL

LES, JUDGE