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 selfreporting 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
-2-

(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 themultiple 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