         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 14, 2009

              STATE OF TENNESSEE v. TIMOTHY RAY AZBILL

                   Direct Appeal from the Circuit Court for Decatur County
                         No. 06-CR-253     C. Creed McGinley, Judge



                    No. W2008-01884-CCA-R3-CD - Filed August 13, 2009


The defendant, Timothy Ray Azbill, was convicted of aggravated burglary, rape of a child, and
especially aggravated kidnapping. For his conviction of aggravated burglary, the defendant was
sentenced as a Range II, multiple offender to eight years in the Tennessee Department of Correction.
For his convictions of rape of a child and especially aggravated kidnapping, the defendant was
sentenced as a Range I, violent offender to twenty-five years for each conviction. The court ordered
that the sentences were to run concurrently but consecutively to the sentence on a prior conviction.
On direct appeal, this court affirmed the defendant’s convictions, but determined that the trial court
had erroneously begun at the midpoint of the statutory range and remanded the case for resentencing
for rape of a child and especially aggravated kidnapping. On remand, the trial court again sentenced
the defendant to twenty-five years for each conviction. On appeal, the defendant asserts that the trial
court erred by failing to consider mitigating evidence offered by the defendant and summarily
imposed the sentences. After a thorough review of the record and the parties’ briefs, the judgments
of the trial court are affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.

Guy T. Wilkerson, District Public Defender (at trial and on appeal), Camden, Tennessee, for the
appellant, Timothy Ray Azbill.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Robert Radford, District Attorney General; and Eddie N. McDaniel, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       We discern the relevant factual history from our opinion on direct appeal. State v. Timothy
Ray Azbill, No. W2007-00086-CCA-R3-CD, 2007 WL 4355472 (Tenn. Crim. App., at Jackson, Dec.
12, 2007), perm. app. denied (Tenn. May 5, 2008). The evidence presented at the defendant’s trial
established that the defendant entered the home of M.L,1 the minor victim, without permission and
took her from her home, shoved her in his vehicle, and drove to a nearby church. Id. at *1.
According to the testimony of M.L., the defendant “punched her in the jaw and attempted to strangle
her.” Id. He also held a screwdriver to her throat and threaten to kill her and her mother if she told
anyone about the incident. Id. M.L. stated that the defendant made her take her clothes off and sit
on top of him, and that he “place[d] something” inside her body. Id. On direct appeal, the defendant
challenged the sufficiency of the evidence supporting his convictions of aggravated burglary, rape
of a child, and especially aggravated kidnapping and the trial court’s application of sentencing
enhancement factors. Id. at *1. This court concluded that the defendant’s issues were without merit
and affirmed the convictions. However, this court further concluded that in sentencing the defendant
for rape of a child and especially aggravated kidnapping, the trial court erred in beginning at the mid-
point of the statutory range. The case was remanded for resentencing as to those convictions. Id.
at *7.

       At a resentencing hearing, Shirley Hensley, the defendant’s mother, testified that the
defendant continuously grew his hair and donated it to Locks of Love, a charitable organization for
the benefit of cancer patients. She claimed that the defendant was raised in an alcoholic, abusive
home and stated that he was beaten by her former husband. Ms. Hensley stated, “If my son is in his
right mind . . .he would never harm a woman or a kid.” On cross-examination, Ms. Hensley
acknowledged that the defendant had been in trouble since the 1990’s and that he had been
incarcerated in several state penitentiaries.

        Crissy Fuller, the defendant’s sister, testified that the defendant had a protective attitude
toward children. She believed that his protective attitude was a consequence of growing up in an
abusive home. Ms. Fuller recounted several incidents that she thought demonstrated the defendant’s
protective attitude including one incident involving the defendant’s confrontation of a woman who
slapped her child.

        The defendant testified that he “only had one violent charge in [his] whole life . . .besides
these charges here.” He asked the court for mercy and stated, “I would never hurt anybody unless
they were trying to hurt me.” On cross-examination, that state impeached the testimony of the
defendant with regard to his statement that he only had one charge involving violence. The
defendant admitted that in 2003, he was charged with attempted rape and was convicted of breaking
and entering. He also agreed that in 2002, he was charged with aggravated assault and felony escape
and convicted of felony escape. The defendant admitted that in 2002, he had been charged with
assault and that the charge involved violence. He agreed that in 2001, he was charged with
aggravated assault. In 1997, the defendant was convicted of assault and battery in Oklahoma and
sentenced to ten years in prison. The trial court again sentenced the defendant as a Range I, violent
offender to the maximum time within the applicable range, twenty-five years. The defendant has
appealed.




       1
           M.L. was eleven years old at the time of the offense. It is our policy to refer to minor victims by their initials.

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                                            Analysis
                                        Length of Sentence

         On appeal, the defendant challenges the length of his sentences for his convictions of rape
of a child and especially aggravated kidnapping. The defendant asserts that the trial court erred in
sentencing him to twenty-five years, the same sentence previously ordered. He argues that the trial
court made “no mention of the fact that the defendant shows some regard for society and has some
redeeming quality as evidenced by the fact he donates his hair to cancer victims[.]” The defendant
acknowledges that his upbringing in an abusive home does not excuse his actions, but asserts that
the trial court “seemed to summarily dismiss that family testimony without comment.”

         When a defendant challenges the length and manner of service of a sentence, this court
conducts a de novo review of the record with a presumption that the trial court’s determinations are
correct. Tenn. Code Ann. § 40-35-401. This presumption of correctness is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However,
if the record shows that the trial court failed to consider the sentencing principles and all relevant
facts and circumstances, then review of the challenged sentence is purely de novo without the
presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). On appeal, the party
challenging the sentence imposed by the trial court has the burden of establishing that the sentence
is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts. We will uphold the
sentence imposed by the trial court if (1) the sentence complies with our sentencing statutes, and (2)
the trial court’s findings are adequately supported by the record. See State v. Arnett, 49 S.W.3d 250,
257 (Tenn. 2001); see also Tenn. Code Ann. § 40-35-210(f).

        Rape of a child and especially aggravated kidnapping are Class A felonies. Tenn. Code Ann.
§§ 39-13-522(b) and 39-13-305(b)(1). The sentence range for a standard offender convicted of a
Class A felony is fifteen to twenty-five years. Id. § 40-35-112(a)(1). Therefore, the applicable
sentencing range for the defendant was fifteen to twenty-five years for each conviction at issue. On
appeal, the defendant has the burden of illustrating that the sentence imposed by the trial court is
erroneous.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made
by the accused in his own behalf, and (h) the accused’s potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). Enhancement factors may be considered only if they are
“appropriate for the offense” and “not already an essential element of the offense.” Tenn. Code Ann.
§ 40-35-114.

        Prior to the 2005 amendments to the 1989 Sentencing Act, in sentencing a defendant, a court
was to begin at the mid-point of the statutory range and then apply the appropriate enhancement and
mitigating factors. Pursuant to the 2005 amendments, which are applicable to sentencing the

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defendant on an offense occurring on October, 26, 2005, our Sentencing Act has abandoned the
statutory minimum sentence and renders enhancement and mitigating factors advisory only. See
Tenn. Code Ann. §§ 40-35-114, -35-210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” which the trial court is required to consider but is not bound by. See Tenn.
Code Ann. § 40-35-210(c). Although the application of factors is advisory, a court shall consider
“[e]vidence and information offered by the parties on the mitigating and enhancement factors in §§
40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court is also required to place on the
record “what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(d).

        At the resentencing hearing, the trial court acknowledged its previous error in beginning at
the midpoint of the sentencing range. The court then applied the same enhancement factors that it
applied in originally sentencing the defendant: the defendant’s previous history of criminal
convictions or criminal behavior; the offense was committed to gratify the defendant’s desire for
pleasure or excitement; the defendant employed a firearm, explosive device, or other deadly weapon
during the commission of the offense; and the defendant was released on probation at the time of the
offense. See Timothy Ray Azbill, 2007 WL 4355472, at *6 (finding no error in the court’s
application of enhancement factors); and Tenn. Code Ann. § 40-35-114 (1), (7), (9), and (13). In
addition, the trial court found that the defendant had numerous probation violations and applied
enhancement factor (8), that the defendant had failed to comply with the conditions of a sentence
involving release into the community. See Tenn. Code Ann. § 40-35-114 (8). The presentence
report reveals a number of probation violations including that in 1993, the defendant absconded after
having been placed on probation in Florida for a grand theft conviction. The defendant does not
challenge the application of enhancement factors and the record supports the trial court’s findings
as to enhancement factors.

        As to mitigating factors, this court previously recognized that in originally sentencing the
defendant, the trial court found a lack of any mitigating factors. See Timothy Ray Azbill, 2007 WL
4355472, at *7. On appeal of the original sentence, the defendant did not challenge the trial court’s
finding regarding a lack of mitigating factors. See id. at *3. However, at the resentencing hearing,
additional testimony was offered by the defendant and his family members that had not previously
been presented to the trial court. The new testimony included that the defendant had demonstrated
a protective attitude toward children, the defendant had donated his hair to a charitable organization
to benefit cancer patients, and the defendant had grown up in an alcoholic, abusive home. In
sentencing the defendant, the court indicated its findings as to applicable factors stating, “I would
reiterate the factors . . . considered previously and that apply today although the record did not
disturb those findings.” The court proceeded to review enhancement factors; however, it did not
refer to the evidence presented in support of mitigating factors.

         Our statutory language states that upon sentencing a defendant, a court shall consider
“[e]vidence and information offered by the parties on the mitigating and enhancement factors in §§
40-35-113 and 40-35-114.” Tenn. Code Ann. § 40-35-210(b)(5). We agree with the defendant that
the trial court failed to indicate consideration of the evidence offered through the testimony of the
defendant and his family members. Other than to state that nothing in the record altered the court’s


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previous findings, the trial court’s holding was devoid of any comment or findings regarding the
evidence offered at the hearing.

        However, despite the trial court’s failure to indicate its consideration of evidence presented
by the defendant, we conclude that the defendant was appropriately sentenced. The record supports
the maximum sentence within the statutory range for the defendant’s convictions of rape of a child
and especially aggravated kidnapping. See Tenn. Code Ann. §§ 40-35-103, -210; and State v.
Taylor, 63 S.W.3d at 411. The defendant has several probation violations and has demonstrated a
disregard for authority, the law, and the terms of previously imposed sentences. The evidence
supports that the defendant lacks a potential for rehabilitation. Also, at least one statement by the
defendant made at the resentencing hearing is not supported by the record. The defendant claimed
that he had not been a “violent inmate,” however, the presentence report indicates that while the
defendant was incarcerated in Oklahoma, he had numerous prison rule violations including assault
of an officer and two violations for possession of a weapon. Furthermore, the state impeached the
defendant’s testimony that he had only one violent charge with evidence of numerous charges. The
defendant admitted that he had previously been charged with attempted rape, aggravated assault,
felony escape, aggravated assault, and assault and battery. The presentence report indicates that the
defendant has numerous prior convictions including breaking and entering, assault, felony escape,
and assault and battery. There is overwhelming evidence to support application of the maximum
sentences for the defendant’s convictions of rape of a child and especially aggravated kidnapping.
Moreover, in our view, the testimony presented at the hearing was insufficient to mitigate the
defendant’s sentences. Accordingly, we conclude that the defendant’s sentences were imposed in
compliance with our sentencing guidelines and are adequately supported by the record. The trial
court did not abuse its discretion in ordering concurrent sentences of twenty-five years for the
defendant’s convictions of rape of a child and especially aggravated kidnapping. The defendant is
not entitled to relief on this issue.

                                             Conclusion

       Based on the foregoing, the judgments of the trial court are affirmed.



                                                       ___________________________________
                                                       J.C. McLIN, JUDGE




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