         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON               FILED
                        MAY 1999 SESSION
                                                    July 22, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )    NO. 02C01-9901-CC-00020
      Appellee,                )
                               )    DECATUR COUNTY
VS.                            )
                               )    HON. C. CREED MCGINLEY,
JOE FRANK BOYD,                )    JUDGE
                               )
      Appellant.               )    (Sentencing)



FOR THE APPELLANT:                  FOR THE APPELLEE:

CARTHEL L. SMITH, JR.               PAUL G. SUMMERS
85 East Church St.                  Attorney General and Reporter
Lexington, TN 38351
                                    R. STEPHEN JOBE
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    ROBERT ("GUS") RADFORD
                                    District Attorney General

                                    JERRY W. WALLACE
                                    Assistant District Attorney General
                                    P.O. Box 637
                                    Parsons, TN 38363




OPINION FILED:



AFFIRMED; REMANDED
FOR ENTRY OF PROPER JUDGMENTS



JOE G. RILEY,
JUDGE
                                    OPINION


       Defendant, Joe Frank Boyd, pled guilty to one hundred forty-one counts of

Class C, D and E thefts. Sentences for each offense were agreed upon in

defendant's plea agreement.         However, the manner of service and the

consecutive/concurrent nature of service were left to the trial court. After a hearing,

the trial court ordered partial consecutive sentencing for an effective sentence of

eighteen years. In this appeal as of right, defendant challenges the trial court's

imposition of consecutive sentencing. Upon our review of the record, we AFFIRM

the trial court's decision to impose partial consecutive sentencing. However,

because the record contains discrepancies as to the actual number of years

defendant was ordered to serve, we must REMAND this matter for entry of proper

judgments.



                                       FACTS



       Defendant owned Boyd Funeral Home. During the years 1988 through 1997,

defendant sold "pre-need" funeral contracts to numerous people. The funds he

received for these contracts were required to be held in a trust account. However,

defendant converted over $670,000 of these funds to his own use. He testified that

he used most of the converted funds in his funeral home business. He spent

approximately $111,000 on medical expenses for his child.



       The proof established that defendant had been untruthful to a state

investigator on numerous occasions. As a result, he was able to continue his

conversion scheme for several more years.          The proof also established that

defendant sold these contracts even while not licensed to do so, and that he forged

trust account documents.




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       In sentencing defendant, the trial court noted that there had never been a

crime in Decatur County which directly affected so many people. The judge

described defendant's activities as "pervasive," "far reaching," and "traumatic." The

trial judge further stated:

              In this case the evidence is quite strong that the
              defendant in this case derived if not all of his income
              certainly a majority of it from his predatory acts on
              members of the public here in Decatur County. He --
              his own accounting showed that according to his figures
              that he lost money through his funeral business and
              that he supported himself wholly and solely on the
              funds that he stole from these people.

               ...

               As I have indicated, the Court finds that essentially this
               person is a thief, he's a liar or a prevaricator or teller of
               falsehoods, however one wants to classify it. He's a
               predator that has victimized the elderly, the poor of this
               county. And he has engaged in a sustained pattern of
               criminal activities over a long period of time and he has
               in fact relied upon those activities as his major source
               of livelihood.

               ...

               The Court finds that it's necessary to incarcerate him in
               this case, that essentially the public deserves protection
               from his future criminal activity.

               ...

               [G]iven the pattern of deception [with] the regulatory
               agencies, pattern of deception in telling various people
               that he would make their contract good and issuing bad
               checks and has not, the potential -- there is just no
               indication that if . . . society were not protected from
               him, as was pointed out through witnesses who
               indicated that very well if he offered pre-need contracts
               they might subscribe to them in the very near future.

               The Court feels . . . that if this man is at liberty the
               public is at risk for further activities involving his crime
               [sic] nature[,] . . . [and] that it would not be in the best
               interest of society to put this man back out at liberty so
               that he could continue his criminal life.



The trial court further noted defendant's lack of candor, total lack of remorse, and

that his "potential for rehabilitation is just very, very negative." Based upon these

findings, the trial court denied an alternative sentence and ordered the sentences




                                            3
for counts one through ten (excepting seven) to be served consecutively to one

another for a total effective sentence of eighteen years.1



                                STANDARD OF REVIEW



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and the trial

court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d at 785, 789 (Tenn. Crim. App. 1991).



       A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

       (1) [t]he defendant is a professional criminal who has knowingly
       devoted himself to criminal acts as a major source of livelihood; or


       (2) [t]he defendant is an offender whose record of criminal activity is


       1
          Specifically, the trial court pronounced from the bench the following: “Count one,
a two year sentence. Count two, a three year sentence. Count four, a two year sentence.
Count five, a two year sentence. Count six, a two year sentence . . . . Count seven is a nolle
. . . . Count eight is a two year sentence. Count nine is a two year sentence. Count ten is a
one year sentence. Those cases shall all run consecutive, which will mean an aggregate
sentence of eighteen years in the Department of Corrections. The balance of the sentences
shall run concurrently in this case.” When added, these sentences total only sixteen years.
The judgment form for count three, unmentioned by the judge in his oral ruling, reflects a
two year consecutive sentence, bringing the total to eighteen years. However, while
defendant's plea agreement for count four reflects a two year sentence as recited by the judge,
the judgment form for count four indicates a three year consecutive sentence. Thus, the total
effective sentence according to the judgment forms for counts one through ten is nineteen
years.

                                              4
      extensive.

Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912 (Tenn.

Crim. App. 1995). Furthermore, the court is required to determine whether the

consecutive sentences (1) are reasonably related to the severity of the offenses

committed; (2) serve to protect the public from further criminal conduct by the

offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



                     PRESUMPTION OF CORRECTNESS



      In this case, the record demonstrates that the trial judge considered the

sentencing principles and all relevant facts and circumstances.         Thus, the

presumption of correctness attaches to his findings. The trial court specifically

found that the defendant was both a professional criminal, and that his record of

criminal activity is extensive. Moreover, the court found that defendant's crimes

were very severe, and that the public needed protection from further criminal

conduct by him. The trial judge made clear, via the entirety of his careful and

thorough findings, that he considered this sentence appropriate under the relevant

sentencing principles.



                          PROFESSIONAL CRIMINAL



      Defendant argues that he should not be classified as a professional criminal

because he earned substantial other income. The record belies this assertion. The

proof established that, during the years 1988 through 1996, his business generated

a total net loss. Clearly, defendant was relying heavily on stolen funds to stay in

business. Furthermore, a defendant may earn substantial other income and still

meet the definition of professional criminal. See, e.g., State v. Troy Carney and



James Andrew Slaughter, Jr., No. 01C01-9412-CR-00425, Davidson County (Tenn.


                                        5
Crim. App. filed February 23, 1996, at Nashville).



       Defendant also contends that he is not a professional criminal because of his

efforts at restitution. At the time of the sentencing hearing, approximately $100,000

had been paid toward the total restitution of $670,000.            However, a large

percentage of this money came from his wife's retirement fund. Indeed, the trial

judge stated that defendant's efforts regarding restitution "have been extremely

cavalier at best." Furthermore, efforts at restitution do not mitigate defendant's

actions in knowingly devoting himself to stealing for a period of almost ten years.



       Defendant also relies upon this Court's decision in State v. Eddie L. Howard,

C.C.A. No. 03C01-9604-CC-00167, Hamblen County (Tenn. Crim. App. filed March

12, 1999, at Knoxville). In that case, the defendant was convicted of four cocaine

sales of $200 each occurring over a two week period. The defendant's prior record

consisted of a "retail theft" in Illinois and one or two convictions for driving without

a license in Tennessee. The trial court determined that the defendant was a

professional criminal on the basis that he was earning only $25 to $50 per week at

his job. This Court disagreed with the trial court's determination because there was

no evidence in the record that the defendant obtained his livelihood almost entirely

through criminal activity.



       The Howard case is clearly distinguishable from the case at bar. Contrary

to defendant's argument, it does not hold that a defendant can be found a

professional criminal only if he has an extensive prior criminal record; otherwise, the

statutory provision for professional criminal would be superfluous to that for

offenders with extensive records. We are required to construe statutes so that no

part is rendered "inoperative, superfluous, void or insignificant." State v. Hall, 976

S.W.2d 121, 174 (Tenn. 1998). In this case, defendant systematically stole over

$670,000 from the members of his community over the course of a decade. Since

his business was not generating enough money to sustain itself, the stolen funds



                                           6
were defendant's major source of livelihood.



       The trial court's determination in this case that defendant is a professional

criminal within the context of consecutive sentencing was correct.2 See State v.

Frank Whitus, C.C.A. No. 01C01-9301-CR-00038, Sumner County (Tenn. Crim.

App. filed July 22, 1993, at Nashville) (defendant who systematically defrauded the

Tennessee Housing Development Authority over three years, involving twenty-

seven fraudulent loans amounting to over $1,000,000, was a professional criminal).

This issue is without merit.



                               WILKERSON FINDINGS



       Defendant also argues that there is no indication in the record that he poses

a threat to the public, or that he is likely to engage in future criminal activity. See

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). He contends that this was

a "crime of opportunity" and that the opportunity no longer exists because he has

lost his licenses to operate as a funeral director and embalmer. This argument

ignores defendant's prior conduct in selling pre-need contracts while unlicensed to

do so. It also ignores the fact that, at the time of the hearing, defendant was

working for another funeral home, and that one of his customers testified he would

buy a pre-need contract from defendant in the future if he could.                  Indeed,

defendant's employer testified that he had hired defendant for his connections in the

community, and "[t]here's a lot of people that still likes (sic) Joe Frank Boyd." The

trial judge, in a much better position to judge the credibility of the defendant than

this Court, specifically found that the public needed protection from defendant's

criminal activity. The evidence does not preponderate against this finding.



                                     CONCLUSION



       2
         Although not challenged by defendant, we also find correct the trial court's ruling
that defendant is an offender whose record of criminal activity is extensive.

                                             7
       Defendant failed to carry his burden of proving that the trial court erred in

sentencing him. We AFFIRM the trial court's determination that defendant serve

a portion of his sentences consecutively for an effective sentence of eighteen years.

However, because the trial court's pronouncement from the bench omitted

defendant's sentence for count three, and because the judgment form for count four

reflects a different sentence than that stated by the judge and agreed to by

defendant, we must REMAND this matter in order for the trial court to correct these

inconsistencies. We further note that each of the judgment forms for counts eleven

through one hundred sixty indicates that the sentence for each of those offenses

runs consecutively to counts one through ten (but concurrent with one another).

This, too, appears inconsistent with the trial judge's ruling. Accordingly, on remand

the trial court shall enter corrected judgments to reflect that those sentences run

concurrently with counts one through ten. In all other respects, the judgment below

is affirmed.




                                                 ____________________________
                                                 JOE G. RILEY, JUDGE


CONCUR:



____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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