             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                            June 9, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )    No. 01C01-9612-CC-00505
                                   )
      Appellee                     )
                                   )    WILLIAMSON COUNTY
V.                                 )
                                   )    HON. DONALD P. HARRIS,
JOSEPH W. EZELL,                   )    JUDGE
                                   )
      Appellant.                   )    (Sentencing)
                                   )
                                   )


For the Appellant:                      For the Appellee:

John H. Henderson                       John Knox Walkup
District Public Defender                Attorney General and Reporter

Larry D. Drolsum                        Karen M. Yacuzzo
Assistant Public Defender               Assistant Attorney General
407-C Main Street                       425 Fifth Avenue North
Franklin, TN 37065                      Nashville, TN 37243-0493


                                        Joseph D. Baugh, Jr.
                                        District Attorney General

                                        Jeffrey P. Burks
                                        Assistant District Attorney
                                        Williamson County Courthouse
                                        Suite G-6
                                        Franklin, TN 37065



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                              OPINION


        The appellant, Joseph W. Ezell, appeals as of right the sentences he received

in the Williamson County Circuit Court. Appellant was given an effective sentence of

thirty (30) years as a Range II offender for his guilty pleas to numerous theft and

burglary offenses. On appeal, he challenges both the length of his sentences and the

order of consecutive sentences. After a review of the record, we affirm the judgment

of the trial court.

        During August and September of 1995, appellant broke into a number of

residences in Williamson County and stole personal property from the owners. As a

result of that and other criminal activity, he was indicted for six (6) counts of

aggravated burglary; five (5) counts of felony theft; three (3) counts of misdemeanor

theft; three (3) counts of forgery; and one (1) count of evading arrest.1 Appellant

entered guilty pleas to a number of the indicted offenses with no agreement as to the

sentences he would receive.

        At a subsequent sentencing hearing, the trial court applied certain

enhancement factors and ordered the following sentences: (1) eleven months and

twenty nine days for three counts of misdemeanor theft; (2) four years for counts two,

three, and four of forgery; (3) eleven months and twenty nine days for count five of

evading arrest; (4) ten years for six counts of aggravated burglary; and (5) eight years

for four counts of theft over one thousand ($1,000) dollars. Count five of evading

arrest was ordered to be served consecutively to count one of misdemeanor theft and

count two of forgery. Three counts of aggravated burglary, each carrying a ten (10)

year sentence, were ordered to be served consecutively to each other, with one count




        1
        There were add itional counts included in the indictments, but they were considered alternative
counts. Upon the entry of appellant’s guilty pleas, those were nolle prosequi.

                                                   2
also running consecutively to appellant’s probation revocation.2 The remaining

sentences were ordered to run concurrently.

       When a defendant challenges the length, range, or manner of service of a

sentence, we must conduct a de novo review of the record. Tenn. Code Ann. §40-35-

401(d) (1990). The sentence imposed by the trial court is accompanied by a

presumption of correctness and the appealing party carries the burden of showing that

the sentence is improper. Tenn. Code Ann. §40-35-401 (Sentencing Commission

Comments). The presumption, however, is conditioned upon an affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

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

Because the trial court in this case carefully considered the principles of sentencing,

we accord its judgment the presumption of correctness.

        Appellant first alleges that the trial court erred in ordering the maximum

sentence for each offense. He contests both the application of enhancement factors

and the trial court’s failure to consider any mitigating factors. We find no error in the

length of appellant’s sentences.

        In enhancing the sentences for appellant’s felony convictions, the trial court

applied four enhancement factors: (1) appellant’s previous history of criminal

convictions; (8) appellant’s previous history of unwillingness to comply with the terms

of a sentence involving release into the community; (13) appellant was on probation

for a prior felony at the time the instant offenses were committed; and (20) the

appellant was adjudicated to have committed a delinquent act as a juvenile that would

constitute a felony if committed by an adult.3 Tenn. Code Ann. §40-35-114 (Supp.




       2
         Appellant was on probation when the instant offenses were committed. The trial court revoked
his probation and reinstated the original four (4) year sentence.

        3
         This enhancement factor was added to the statute in 1995 and applies to the sentencing of any
defendant committing an offense on or after July 1, 1995. Because appellant committed the instant
offenses in August and S eptember of 19 95, it was proper for the trial court to consider that factor.

                                                  3
1995). Finding no mitigating factors, the trial court sentenced appellant to the

maximum sentence in the range for each offense.

         Although appellant attacks the trial court’s application of the enhancement

factors, he fails to specifically explain why they were applied erroneously. Contrary to

his claims, our review reveals that the enhancers were properly applied. The record

reflects that appellant’s adult criminal record contains ten (10) prior felony convictions

and two (2) misdemeanor convictions. 4 His juvenile record is replete with violations

beginning at age twelve (12). While many of those violations were for truancy and

unruliness, appellant began committing thefts at the age of fifteen (15). As a juvenile,

he was adjudicated delinquent for the theft of an automobile. Such adjudication

would have constituted a felony if committed by an adult. Based upon appellant’s

record, the trial court correctly applied all four enhancement factors.

         Appellant’s arguments primarily relate to the trial court’s failure to consider

mitigating factors. He argues that the trial court should have considered his

youthfulness at the time he committed the earlier offenses and that his conduct

neither caused nor threatened serious bodily injury. Tenn. Code Ann. §40-35-113(1),

(6) (1990). Appellant was twenty-one (21) years of age at the time of sentencing. In

light of the sheer number of offenses that appellant amassed at a very young age, and

in such a short period of time, we conclude that appellant’s age is of little mitigating

value. We acknowledge that appellant’s conduct did not threaten or cause serious

bodily injury. However, any mitigation to which appellant was entitled in that regard

was severely undercut by the substantial weight the trial court accorded the

enhancement factors.




         4
          With the exception of one felony, appellant entered guilty pleas to all those offenses on
November 14, 1994 in Williamson County. He received a four (4) year sentence, suspended after the
service of 280 days, and then placed on supervised probation for six (6) years. Appellant served the 280
days , was relea sed , and com mitte d the insta nt off ens es w ithin fo ur (4) mo nths . As a resu lt, app ellant ’s
probation was revoked a nd he was ordered to serve the original four (4) year sentence. The effective
thirty (30) year sentence resulting from the instant cases was ordered to run consecutively to that four
(4) year sentence. See note 2.

                                                          4
        The weight given to each factor is left to the discretion of the trial court as long

as its findings are supported by the record. State v. Boggs, 932 S.W.2d 467, 475-76

(Tenn. Crim. App.), perm. app. denied (Tenn. 1996); State v. Santiago, 914 S.W.2d

116, 125 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996); State v. Shelton,

854 S.W.2d 116, 123, (Tenn. Crim. App. 1992). The enhancement factors in

appellant’s case were supported by the record and were entitled to great weight.

        Appellant also argues that the trial court should have considered that he

assisted authorities in locating or recovering property, that he was remorseful, that he

confessed, and that he has good potential for rehabilitation. See Tenn. Code Ann.

§40-35-113(10), (13) (1990). However, none of those mitigating factors are supported

by the factual record before us. There was no proof that appellant assisted authorities

or that he made confessions to law enforcement. In reviewing appellant’s testimony at

sentencing, we detect little, if any, remorse.

        Moreover, we believe appellant’s potential for rehabilitation was poor. When

asked if he would commit any other offenses when released, he said that he hoped he

would not, but he could not be sure. He further stated that every time he is released,

he promises not to offend again, but always does. The trial court did not err in

declining to mitigate appellant’s sentences.

        Appellant also contests the trial court’s order that certain sentences be served

consecutively to one another.5 He argues that his classification as a “professional

criminal” and the designation of his criminal record as extensive were in error. See

Tenn. Code Ann. §40-35-115(1), (2) (1990). We disagree.



        5
          Consecutive sentencing was mandatory for a number of appellant’s sentences because he was
on bail wh en the of fenses were co mm itted. Tenn . R. Crim . P. 32(c)(3 )(C). See also Tenn. Code Ann.
§40-20-111(b) (1990). The trial court considered and apparently followed that rule when sentencing the
appellant. However, in order for the judgments to reflect compliance with Rule 32, in Indictment
Numbers I-1095-293, I-296-55, I-296-56, and I-296-57, the forms should state that those sentences,
although concurrent with one another, are consecutive to the sentences for appellant’s pre-bail offenses,
No. I-1195-316. Because those sentences are concurrent with one another, the modification in no way
alters the len gth of ap pellant’s effe ctive sen tence. See State v. Billy Ray Smithson, No. 01C01-9507-
CC-0 0229 (T enn. Cr im. Ap p. at Nas hville, Augus t 1, 1996); State v. Kevin Foster, No. 03C01-9510-CC-
00337 (Tenn. C rim. App. at Knoxville, June 27, 1996).

                                                   5
       In order to direct sentences to be served consecutively because the defendant

is a professional criminal, it must be shown that he has knowingly devoted himself to

criminal acts as a major source of livelihood. Tenn. Code Ann. §40-35-115(1) (1990).

Proof at the sentencing hearing demonstrated that appellant had a poor employment

record, having been unable to hold any position for more than a few months. He

stated at the sentencing hearing that he quit or abandoned the jobs he had in the past.

He also said that the jobs he could perform did not pay well and that stealing was the

fastest way to make money.

       In the presentence report, appellant declined to list any previous employment,

commenting instead, “Hell, if I worked, I wouldn’t be out stealing from people.” He

also told the presentence officer that he was “too lazy to work.” During his testimony

at the sentencing hearing, appellant indicated that he was not working when some of

the offenses were committed and that they were his primary source of income.

Considering that evidence, the trial court was justified in finding that appellant’s

criminal acts were a major source of his livelihood.

       Although only one statutory factor is necessary to order consecutive

sentencing, the trial court also found that appellant is an offender whose record of

criminal activity is extensive. Tenn. Code Ann. §40-35-115(2) (1990). In only three (3)

years as an adult, appellant has amassed a lengthy criminal record, now consisting of

twenty-nine (29) offenses, only six (6) of which are misdemeanors. His criminal record

speaks for itself.

       Our review demonstrates that the maximum sentence for each offense was

readily supported by the record in this case. Furthermore, the trial court’s order of

consecutive sentencing for certain offenses was in conformity with the principles of the

1989 Sentencing Act and supported by the factual record. We affirm the judgment of

the trial court.




                                             6
                                                        _____________________________
                                                        William M. Barker, Judge


CONCUR:


   (Not Participating) ******
Joe B. Jones, Presiding Judge



__________________________
Joe G. Riley, Judge




        ******
           Judge Jones died on May 1, 1998, following a distinguished career as a trial attorney and as
a respected member of this Court since his appointment in November, 1986. He will be greatly missed.

                                                   7
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE

                                OCTOBER 1997 SESSION




STATE OF TENNESSEE,                        )      No. 01C01-9612-CC-00505
                                           )
       Appellee                            )
                                           )      WILLIAMSON COUNTY
V.                                         )
                                           )      HON. DONALD P. HARRIS,
JOSEPH W. EZELL,                           )      JUDGE
                                           )
       Appellant.                          )      (Sentencing)
                                           )
                                           )      AFFIRMED
                                           )


                                       JUDGMENT

       Came the appellant, Joseph W. Ezell, by and through counsel, and also came

the Attorney General on behalf of the State, and this case was heard on the record on

appeal from the Circuit Court of Williamson County; and in consideration thereof, this

Court is of the opinion that there is no reversible error in the judgment of the trial court.

       In accordance with the opinion filed herein, it is, therefore, ordered, and

adjudged by this Court that the judgment of the trial court is affirmed, and the case is

remanded to the Circuit Court of Williamson County for the execution of the judgment

of that court and for the collection of the costs accrued below.

       It appearing that the appellant is indigent, the costs of this appeal will be paid

by the State of Tennessee.




                                                  William M. Barker, Judge
                                                  Joe G. Riley, Judge
