         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

               STATE OF TENNESSEE v. LARRY K. BOMBAILEY

                     Appeal from the Criminal Court for Sullivan County
                       Nos. S46,299; S46,750   R. Jerry Beck, Judge



                                 No. E2003-00421-CCA-R3-CD
                                       January 28, 2004

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating
a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less,
a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to
a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the
public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor
vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that
the trial court would determine the manner of service for the defendant’s conviction for violating a
motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the
defendant’s request for an alternative sentence for the motor vehicle habitual offender violation. The
defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We
affirm the trial court’s denial of an alternative sentence but remand the case for entry of a corrected
judgment for the theft conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,
                                    Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN, J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District Public
Defender, and Terry L. Jordan, Assistant Public Defender (at trial), for the appellant, Larry K.
Bombailey.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

        This case relates to the defendant’s arrests for stealing a lawn mower while intoxicated on
June 26, 2000, and violating a motor vehicle habitual offender order on May 8, 2002. At the
defendant’s guilty plea hearing, the state presented the following factual account of the crimes: On
June 26, 2000, Officer Aaron Grimes of the Kingsport Police Department saw the defendant walking
on a street near where a lawnmower had been reported stolen. Although the defendant matched the
description of the person who had stolen the lawnmower, the defendant denied having any
knowledge about the theft. An eyewitness, however, identified the defendant as one of two people
he saw pushing a lawnmower down the street. When Grimes went to the defendant’s house, he
found the stolen lawnmower. Grimes noted that the defendant had a strong odor of alcohol, was
unsteady on his feet, and had bloodshot eyes. On May 8, 2002, Officer Jason McClain of the
Kingsport Police Department saw the defendant driving a Honda Accord. McClain had prior
knowledge that the defendant’s license had been revoked and the defendant was subsequently
arrested for violating a motor vehicle habitual offender order.

         At the sentencing hearing, the defendant testified that he had been hospitalized three months
earlier for depression. He said he was also receiving medical treatment for emphysema and arthritis.
He said that most of his past criminal behavior was alcohol-related but that he had not consumed any
alcohol within two years of the hearing. He said that he attended Alcoholics Anonymous (AA)
meetings as well Narcotics Anonymous meetings. He said that he was driving to an AA meeting on
May 8 when he was arrested for violating a motor vehicle habitual offender order. He said he
wanted to receive an alternative sentence so that he could continue his counseling and AA meetings.

        Tonya Renee Smith, the defendant’s daughter, testified that the defendant quit drinking two
years ago. She testified that she usually drove the defendant to his doctor appointments and AA
meetings but that on the day he was arrested, she had to take her son to the doctor instead. She said
that the defendant drove to the doctor’s office because his medication was gone and that he was
driving to an AA meeting when he was arrested.

        The presentence report reflects that the defendant is fifty years old and that he dropped out
of school after the eighth grade. The defendant reported having poor health and suffering from
emphysema, crippling arthritis, manic depression, and bipolar disorder. The defendant said that he
first began drinking at age nine and that he consumed twelve beers per day until June 2001. The
report reflects that the defendant has fifty-seven prior convictions, many alcohol-related. The trial
court denied an alternative sentence for the defendant’s violation of the motor vehicle habitual
offender order, finding that the defendant’s extensive criminal history warranted a denial. The trial
court also found that his release would not be beneficial to the community.

       The defendant contends that the circumstances surrounding his decision to drive and his
remorsefulness about driving that day warrant an alternative sentence. When a defendant appeals
the manner of service of a sentence imposed by the trial court, this court conducts a de novo review
of the record with a presumption that the trial court’s determinations are correct. T.C.A. §


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40-35-401(d). However, the 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the
appealing party to show that the sentence is improper. T.C.A. § 40-35-401(d), Sentencing
Commission Comments. This means that if the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately supported in the record, and gave due
consideration and proper weight to the factors and principles that are relevant to sentencing under
the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred.
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         When determining if incarceration is appropriate, a trial court should consider that (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Additionally, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438. In conducting a de novo review, we must
consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence
report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any
statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.

        Based upon our de novo review, we conclude that the trial court was justified in ordering the
defendant to serve his entire sentence in confinement for his violation of the motor vehicle habitual
offender order. The defendant has an extensive criminal record and has violated probation before.
He has frequently received suspended sentences for his prior convictions. Despite the defendant’s
contention that he has changed his attitude, the record demonstrates that the defendant’s previous
sentences involving release into the community had been unsuccessful and that the defendant does
not reflect a high potential for rehabilitation. Ample evidence exists to support the defendant’s
sentence of confinement.

        By footnote, the defendant states that a discrepancy exists in the record regarding the theft
sentence. The state does not address this point in its brief. Initially, we note that the defendant’s
notice of appeal reflects an appeal for all the convictions even though the issue presented relates
solely to the felony sentence. Thus, the theft case is presently before us. The transcript reflects that
the agreed sentence was eleven months, twenty-nine days, to be served as forty-five days in jail and
the remainder on supervised probation. The judgment form, however, does not have the period of
incarceration before probation portion filled in and does not actually note a grant of probation. The


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special conditions portion provides “TO SERVE 45 DAYS FLAT.” We do not believe the judgment
conforms to the agreement. Moreover, if saying that it is to be served “flat” implies that the
defendant is not entitled to sentencing credits, such constitutes an illegal sentence. See, e.g., State
v. Clark, 67 S.W.3d 73, 78 (Tenn. Crim. App. 2001); State v. James Kevin Underwood, No. E2000-
01945-CCA-R3-CD, Washington County (Tenn. Crim. App. Aug. 2, 2001). We need to remand the
theft case for correction of the judgment of conviction.

        Based on the foregoing and the record as a whole, we affirm the trial court’s denial of an
alternative sentence for the defendant’s conviction for violating the motor vehicle habitual offender
order. However, we remand the theft case for entry of a corrected judgment to reflect that the
defendant is to serve forty-five days in jail with the remainder of the sentence on probation.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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