         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 13, 2000

                 STATE OF TENNESSEE v. LARRY M. GRIGSBY

                 Direct Appeal from the Criminal Court for Sullivan County
                            No. S41,898    R. Jerry Beck, Judge



                                 No. E2000-00924-CCA-R3-CD
                                       January 25, 2001

Larry M. Grigsby entered guilty pleas to one count of promoting prostitution and two counts of
criminal simulation. The manner of service, including entitlement to probation and/or Community
Corrections, was submitted to the trial court. The trial court denied any form of alternative
sentencing based upon Grigsby’s extensive prior criminal history and the failure of previous
measures less restrictive than total confinement. On appeal, Grigsby argues that the trial court erred
in denying an alternative sentence. After review, we conclude that the record supports the trial
court’s sentencing decision. The judgment, accordingly, is affirmed.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
NORMA MCGEE OGLE , JJ., joined.

Mark H. Toohey, Kingsport, Tennessee, for the Appellant, Larry M. Grigsby.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Clinton J.
Morgan, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and Todd
Martin, Joseph Eugene Perrin and Mary Katharine Harvey, Assistant District Attorneys General, for
the Appellee, State of Tennessee.


                                             OPINION


        The Appellant, Larry M. Grigsby, appeals the sentencing decision of the Sullivan County
Criminal Court. On October 12, 1999, the Appellant, a range II offender, entered guilty pleas to one
count of promoting prostitution and two counts of criminal simulation, class E felonies. The trial
court accepted the terms of the plea agreement which provided that a four-year sentence would be
imposed for each count, with all counts to be served concurrently. The manner of service, however,
was submitted to the trial court for determination. After a sentencing hearing, the trial court denied
any form of alternative sentencing and ordered the sentences be served in the Tennessee Department
of Correction. The Appellant appeals the trial court's denial of an alternative sentence.1

         After review, we affirm.

                                                      Background

        The Appellant has been in the adult entertainment business for approximately twenty-five
years. At the time of his arrest, he was operating an escort, modeling and dance agency in the Bristol
area with advertisements for these services in a local circular. Following the execution of search
warrants at the business address, numerous phone records, business records and recorded
transactions were seized which established that the Appellant was engaged in the promotion of
prostitution. Also seized were various items of “bootleg merchandise” manufactured under brand
names protected by copyright laws.2

        A sentencing hearing was held on April 14, 2000. No testimony was presented; rather, the
parties relied upon the presentence report, an affidavit of TBI Special Agent Frank McCauley, and
the transcript of the suppression hearing and the guilty plea hearing. Based upon this evidence, the
trial court entered the following findings of fact and conclusions of law:



         1
           At the sentencing hearing held April 14, 2 000, the trial c ourt imposed a sentence of total confinement and
denied any form of alternative sentencing. The court’s oral ruling is reflected in the court’s minutes of April 14th. On
April 18, 200 0, the App ellant filed a notice of appea l to this court from “the Judgment entered on April 14, 2000.” The
written judgments of conviction were entered by the trial court on April 30, 2000, which reflect verbatim the court’s
previous oral ruling.
          As a preliminary matter, the State contends that the appeal in this case has not been prop erly perfected because
this court is without jurisdiction to entertain the appeal. Specifically, the State asserts that the court’s “oral
announcement [of April 14, 2000,] is not an appealable final judgment.” In suppo rt of this contentio n, the State cites
to two unpublishe d opinion s of this court, State v. Landy G. Ka sh, No. 01C01-9705 -CR-00179 (Tenn. Crim. App. at
Nashville, Feb. 23, 1998), and James R . Blevins v. Sta te, No. 03C01-9106-CR-00171 (Tenn. Crim. App. at Knoxville,
Jan. 7, 1992 ), reh’g denied, (Apr. 10 , 1992). In itially, we note that, despite the State’s assertion and contrary to the
mandate of Rule 19(4) of the Rules of the Court of Criminal Appeals, copies of these unpublished opinions are not
attached to the State’s brief. Moreover, these cases are factually dissimilar to the present case. In both State v. Landy
G. Kash and James R . Blevins v. Sta te, no final judgment or order had been enter ed. State v. Landy G. Ka sh, No.
01C01-9705-CR-00179; James R . Blevins v. Sta te, No. 03C01-9106-CR-00171. Thus, there was no judgment from
which an appeal could be taken. However, in the instant case, final judgments were entered. We do not find the
Appellan t’s reference to the April 14 , 2000, oral pronouncement fatal to the notice of appeal. The written judgment
entered on April 30th merely restated the court’s oral ru ling of April 14 th. “The pur pose of the notice of ap peal is simply
to declare in a formal way an intention to appeal. As long as this purp ose is met, it is irreleva nt that the pap er filed is
deficient in some other respect.” See Advisory Commission Comments, Tenn. R. App. P. 3(f). There is no doubt as
to the judgment from which the Appellant seeks our review. Accordingly, we reject the State’s argument that the appeal
should be dismissed an d proceed to a ddress the case upo n its merits.

         2
          The two counts of criminal simulation to which the Appellant pled guilty charged unlawful possession of (1)
sixty-four pairs of sunglasses and fifty “Oakley” bags which were counterfeited and (2) numerous heat transfer logos
which were c ounterfeited .

                                                             -2-
         . . . Mr. Grigsby is presently age fifty-six (56) years of age. Mr. Grigsby successfully
         completed high school. . . .
         ...

         Now, the defendant has been convicted, though, of various offenses. . . . And some
         of the offenses he's been convicted of have a familiar ring to them as being somewhat
         related in kind to the cases he's pled guilty to, at least the prostitution.[3] . . .
         There is an order reflected, filed on March 20th, 1992, out of the U.S. District Court,
         indicating a probation, and the defendant's probation was extended. . . . And the
         defendant was eventually sentenced to twelve (12) months in that case. And he
         completed and was discharged in that case from his probation. These are all negative
         things in regards to prior record of convictions. He has been on probation before on
         various occasions. And he was a successful graduate . . . of Bristol Tennessee High
         School, which is positive.

         He describes his health as fair, but there are indications . . . that he does suffer from
         urinary retention. That would be significant in regards to Community Corrections.
         And I'll carefully weigh that. The defendant does indicate he's a social drinker, which
         is not particularly negative. A lot of people are. He does self report as an adult,
         though, smoking marijuana five or six times. In a sense that is negative, but on the
         other hand he self reported it, which could be considered a positive factor, because
         it's a very easy thing to not tell the truth about. . . . He has been married and divorced.
         . . . He has been employed on occasion. He does have some medical problems now
         that would interfere with that. He says he’s worked as a sales clerk. . . . He’s been
         involved with flea market operations.

         . . . The most negative factor is the history, long history of criminal activity, is the
         most apparent factor in the case. Attached to the presentence Report is a report from
         the Kingsport Urology, dated December 14th, 1999, that describes and confirms Mr.
         Toohey’s statements about the defendant having to use a fixed catheter and he does
         this himself to have urine pass from his body. And that’s done on a regular basis, so
         the statements of counsel are confirmed in that regard by the report. . . . [The
         Appellant’s report of Bell’s Palsy, a paralysis of part of his face,]is confirmed.
         ...




         3
           The presentence report rev eals a 1992 V irginia convic tion for poss ession of ob scene mate rial with intent to
distribute; a 1992 Virginia conviction for aiding and abetting prostitution; a 1989 federal conviction for escape from
custody; a 1987 federal conviction for violation of copyright laws; a 1982 Virginia conviction for pandering and keeping
a bawdy ho use; 1982 Tenness ee convictio ns on two co unts of public nuisance and one count of maintaining a house of
ill fame for prostitution; a 1979 Tennessee conviction for distributing obscene material; 1977 Tennessee convictions for
four counts of permitting opposite sex employee to perform body massage; and 1977 Tennessee convictions for
seventeen c ounts of po ssession of ob scene mate rial with intent to sell.

                                                            -3-
       Now, first addressing the issue of Probation or Intensive Probation. Clearly, the
       negative factors outweigh the positive factors. Again, relying heavily upon the
       defendant’s prior involvement with the law and prior rap sheet. . . .
       The other issue . . . the special needs provisions under the Tennessee Community
       Corrections statute. And in this regard, the defendant does have some special needs.
       . . . I must do a weighing process against the unfavorable factors against the favorable
       factors. And the Court is of the opinion that still, even considering the lesser degree
       of, that would exist in Community Corrections . . . that the negative factors would
       outweigh the positive factors and that Community Corrections should also be denied.
       Also, the defendant . . . because he is convicted of Class E felonies, the defendant
       does have the presumption of probation even though . . . but I think a range II does
       not have the presumption even for a class E.


                                              Analysis


       Again, the Appellant contends that the trial court did not properly consider the statutory
principles of sentencing in its denial of any form of alternative sentencing. He asserts that “his
cooperation [with authorities,] coupled with his special needs, medically, entitle him to
probation.”

        When the sentencing court properly considers the relevant sentencing considerations, this
court conducts a de novo review with the presumption that the determination made by the trial
court is correct. TENN. CODE ANN . § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). Although the presumption favoring alternative sentencing applies to the class E
felonies for which the Appellant has been convicted, the presumption is not applicable to range II
offenders. See TENN. CODE ANN . §40-35-102(6) (1997). Moreover, the Appellant bears the
burden of showing that the sentence imposed by the trial court is improper. See TENN. CODE
ANN . §40-35-210(b)(3) (Supp. 1999).

        Alternative sentencing options may be denied if it is shown that the Appellant has a long
history of criminal conduct, that the Appellant has not been rehabilitated with less restrictive
methods, or that confinement is necessary to avoid depreciating the seriousness of the offense.
See TENN. CODE ANN . §40-35-103(1)(A)-(C) (1997). Additionally, the potential or lack of
potential for rehabilitation of a defendant should be considered in determining whether he or she
should be granted an alternative sentence. TENN. CODE ANN . § 40-35-103(5).

        In the present case, we find that the trial court considered all relevant evidence and so
stated on the record. Moreover, as the trial court found, the record reflects (1) an extensive
history of similar criminal offenses and (2) the failure of previously imposed suspended




                                                 -4-
sentences. See TENN. CODE ANN . § 40-35-103(1)(A) & (C). Additionally, the record belies his
alleged claim of cooperation with the authorities.4

        After review of the issues before us, we conclude that the Appellant has failed to establish
that the sentences imposed by the trial court were erroneous. Sentencing Commission
Comments, TENN. CODE ANN . § 40-35-401(d). Accordingly, the judgment of the trial court is
affirmed.




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         4
          A portion of the AGENCY STATEMEN T provided in the presentence report reveals: “Grigsby was not
cooperative during the investigation. He refused a search consent and refused to talk to investigators after his arrest.”

                                                          -5-
