                                                                                         09/20/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 13, 2017

           STATE OF TENNESSEE v. JOHN DAVID ALTENHOFF

                Appeal from the Circuit Court for Sequatchie County
                     No. 2015CR56       J. Curtis Smith, Judge
                     ___________________________________

                           No. M2017-00052-CCA-R3-CD
                       ___________________________________


John David Altenhoff, the Defendant, pled guilty to voluntary manslaughter and agreed
to an eight-year sentence with the manner of service to be determined by the trial court.
After finding that the Defendant had an extensive history of criminal behavior, that
society needed to be protected from the Defendant, and that measures less than
incarceration had unsuccessfully been applied to the Defendant, the trial court ordered the
Defendant to serve his sentence in the Department of Correction. On appeal, the
Defendant argues that the trial court erred in denying an alternative sentence. After a
thorough review of the facts and applicable case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

B. Jeffery Harmon, Jasper, Tennessee, for the appellant, John David Altenhoff.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Mike Taylor, District Attorney General; and Steve Strain, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                           I. Factual and Procedural History

      On June 2, 2015, the Sequatchie County Grand Jury indicted the Defendant for
second degree murder. On May 23, 2016, the Defendant entered a best interest plea to
voluntary manslaughter and agreed to an eight-year sentence as a Range II multiple
offender. The Defendant agreed that the trial court would determine the manner of
service at a later hearing. At the Defendant’s guilty plea submission hearing, the State
offered a recitation of facts in support of the Defendant’s plea.

       At the sentencing hearing, the Defendant testified that he had serious medical
problems at birth and wore a colostomy bag until he was approximately fifteen months
old; after surgery, he continued to wear diapers until he was in the ninth grade. The
Defendant stated that he was an ironworker until he fell fifteen feet and broke both bones
in his right leg. He also testified that he obtained a scar on his head from a home
invasion in 2011, where he was beaten and shot. The Defendant stated that he had been
diagnosed with “post[-]traumatic stress disorder, severe social anxiety, and depression.”
He explained that he had received counseling and was prescribed medication while
incarcerated, but the medication made him feel like a “zombie” and he could not afford to
pay for it out of pocket, so he no longer took the medication. The Defendant stated that
he had used drugs since he was twelve years old and had “never received any treatment
or help for it.” He explained that, due to his digestive problems, he needs to eat five or
six small meals a day, so he smokes marijuana on a daily basis to help increase his
appetite and relieve his anxiety.

        The Defendant testified that he was born addicted to crack cocaine and that both of
his parents used drugs in front of him when he was a child. In 1999, at the age of
nineteen, the Defendant pled guilty to two counts of sale and two counts of possession of
cocaine and received a probated sentence, but he violated the terms of his probation by
failing a drug screen and was incarcerated. In 2000, the Defendant threw a socket
wrench at an individual in another vehicle; he later pled guilty to throwing a deadly
missile and received a two-year sentence. In 2004, the Defendant pled guilty to burglary,
grand theft, and cocaine possession and received a five-year probated sentence. The
Defendant violated the terms of his probation and was incarcerated. In 2005, the
Defendant moved from Florida to Tennessee to live with his mother because he “knew
that if [he] stayed in Florida [he] would get in trouble again and they have three strikes
and you’re out law, plus the re-offender act, so [he] would have probably received a life
sentence . . . .” After he moved, the Defendant worked for Stone Source, a tile
installation company. The Defendant stated that he had performed stone work for three
different employers during the last ten years and that he “was never fired from any of
them.”

       The Defendant stated that he had two sons, ages seven and eight, who lived with
their mother. He stated that he had visitation with the children “every weekend or any
time that [he] can.” The Defendant testified that, if he received an alternative sentence,
he could easily become employed as a stoneworker. He explained that:
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       [t]he only other thing [he would] be eligible for and what [he] would really
       like to do is become a youth . . . drug counselor for adolescent teens that . . .
       have drug addicted parents like [he] did, because if somebody had helped
       [him] when [he] was a teenager [he] wouldn’t be sitting here right now.

       Regarding the events underlying the offense, the Defendant testified that,
approximately five weeks before the offense, Melody Norris contacted him on Facebook
and stated that “she was breaking up with her boyfriend, she thought [the Defendant] was
cute and wanted to hook up, so it went from there.” However, Ms. Norris continued to
see her former boyfriend, the victim. The Defendant stated that, approximately five days
before the offense, he told the victim that he wanted to end his relationship with Ms.
Norris. He stated that he was not angry with the victim and that they smoked marijuana
together. Three days prior to the offense, the Defendant asked Ms. Norris to move out of
his residence, and he asked the victim to pick up Ms. Norris, which the victim did.
However, on the night of the offense, Ms. Norris “called [the Defendant] hysterical
claiming that [the victim] was going to kill her, that he was going crazy saying that she
put cameras and listening devices in the phone, . . . and would [the Defendant] please
come get her.” Initially, the Defendant told Ms. Norris that he could not come get her
because he did not have a car. After Ms. Norris called the Defendant a second time, he
was able to get a ride with Kathy Bonner.

        The Defendant explained that he had never been to the victim’s house before and
that, when his phone died, he stopped at a gas station to ask for directions. The
Defendant arrived at the victim’s residence at approximately 2 a.m. The Defendant
called Ms. Norris, who stated that she was gathering her belongings and would meet him
outside. After waiting on Ms. Norris to come outside for ten to fifteen minutes, the
Defendant attempted to call her again. Ms. Bonner said that she heard someone
screaming, and the Defendant got out of the vehicle. The Defendant testified that he
“look[ed] around the backside of the trailer where [the screams were] coming from and
[the victim] was on top of [Ms. Norris] hitting her and [the Defendant] told him, . . .
‘Hey, Dude, why don’t you just stop hitting her and come hit on me.’” The Defendant
stated that the victim grabbed a five- or six-foot pole that looked like a piece of electrical
conduit1 and began swinging it while stating that he was going to kill the Defendant and
that Ms. Norris was not going to leave. The Defendant backed up and told the victim that
he had a knife as the victim continued approaching Ms. Bonner’s vehicle and eventually
hit the car with the pole as Ms. Bonner started driving off. The Defendant stated that he

       1
          The Defendant later acknowledged that the pole that looked like “electrical conduit” was
actually a plastic-coated aluminum broomstick handle. However, he stated that he was unaware that it
was plastic-coated aluminum during the offense.
                                               -3-
attempted to pursue Ms. Bonner’s vehicle while Ms. Norris attempted to grab her bags
and evade the victim. At this point, the victim’s father had also exited the victim’s
residence. The Defendant again warned the victim to not come any closer because he had
a knife. The Defendant said that the victim’s father stated that he was going to get a gun
and went back into the victim’s residence. The Defendant told Ms. Norris to run, but the
victim “hit her and she fell down.” The Defendant “charged towards [the victim] and
[the victim] kind [of] stepped back a little bit and it was enough to get [Ms. Norris] up, so
[the Defendant] snatched her towards the car and when she was getting in the car [the
victim] went to swing the pole at [the Defendant].” As the victim swung the pole, the
Defendant “duck[ed] down” and “stabbed [the victim] one time[;] [the victim] fell down
on the ground, [but] he got back up and ran towards his house so [the Defendant] figured
he was okay, and [the Defendant] left.”

       After the Defendant got into Ms. Bonner’s vehicle, he observed that Ms. Norris,
who had also gotten into the vehicle, had “some marks on her[,] [h]er kne[e] was scraped
up, and she got some blood on the backseat of [Ms. Bonner]’s car . . . .” The Defendant
explained that he did not wait for police to arrive because he believed the victim was not
seriously injured and because the victim’s father had threatened to go get a gun. As the
Defendant, Ms. Bonner, and Ms. Norris drove away, the victim’s sister called the
Defendant to inform him that the victim had died. The Defendant returned to Soddy
Daisy, where he smoked marijuana and ingested some methamphetamine. He stated that
another individual, Timothy Brian, later disposed of the knife used to stab the victim.
The Defendant was arrested at approximately 7:30 a.m.

       After making bond, the Defendant returned to work laying tile. He admitted that
he had used drugs since he made bond. The presentence report indicates that the
Defendant informed the presentence report writer that “he did not want to waste [the
report writer’s] time or anyone else’s time [and] that he didn’t want probation[,] he just
wanted to go serve his time.” The Defendant explained that he had been aggravated
because the presentence report writer had called to reschedule the appointment to fill out
the presentence report, and the Defendant did not have a ride to the appointment. He also
stated that he knew the only way that he could overcome his drug addiction was by
detoxing during incarceration. The Defendant testified that he was “trying to get into [a]
drug treatment program[,]” that he “applied to Teen Challenge[,] and [that he] was going
to apply to the Foundry in Alabama also.” The Defendant stated that he chose to apply
for the Teen Challenge program because “after you complete the one-year program they
offer some type of help with training to become a drug counselor, and . . . that’s what [he]
was wanting to do.” The Defendant explained that he chose to apply for a year-long
program because he wanted to “get [his] life straight[]” and to stop using drugs. The
Defendant stated that he pled guilty because he felt responsible for the loss of the

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victim’s life. The Defendant informed the victim’s family that he was sorry for the
victim’s death.

        On cross-examination, the Defendant explained that he had used marijuana and
methamphetamine while out on bond. The Defendant admitted that he had used
marijuana on the day of the offense, but he stated that he had not used methamphetamine.
The Defendant stated that he was not high when he committed the offense and agreed
that his drug use did not influence his behavior that night. The Defendant stated that he
was not violent unless he was provoked. The Defendant denied telling police that he
realized the victim’s pole was plastic when he stabbed the victim. He asserted that he
told police that, if he had known the pole was plastic, he would not have stabbed the
victim, and he “would have just beat [the victim] with [his] hands.” The Defendant
agreed that he did not call 911 after he left the victim’s residence. The Defendant stated
that he had never attended a drug treatment program because he “tried to get help and
[he] was never offered it.” He explained that he “went to New Horizons and asked for
help and they told [him] that cocaine was something that [he] could stop using any time
[he] wanted to, so they couldn’t admit [him].” The Defendant stated that he attended
religious services prior to making bond and that he was still attending church. The
Defendant also admitted that he used methamphetamine prior to making bond when “one
time . . . methamphetamine c[a]me in the jail here and everybody in the pod used it.”

      Diane Cubilla testified that she had known the Defendant for five or six years.
She explained that she was friends with the mother of the Defendant’s children and that
she observed the Defendant frequently spend time with his children. She stated that the
Defendant had “a very good relationship with his sons.” Ms. Cubilla stated that, when
the Defendant talked about the offense, he cried and was remorseful. On cross-
examination, Ms. Cubilla testified that she was aware that the Defendant had “a history
with drugs[]” but did not know that he was currently using drugs. She stated that the
Defendant had the capacity to act violently when provoked, but she had “not witnessed
it.”

        In its written order filed on November 29, 2016, the trial court found that “[t]he
[D]efendant ha[d] a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range[,]” noting his “extensive”
criminal activity. The trial court gave this factor “heavy weight[.]” The trial court also
found that “[t]he [D]efendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community[]” because his probation
had previously been revoked. The trial court gave this factor “moderate weight[.]” The
trial court found that no mitigating factors applied to the Defendant’s case. The trial
court noted that, because the Defendant was a Range II multiple offender, he was not

                                          -5-
considered a favorable candidate for an alternative sentence. In determining that the
Defendant should serve his sentence in confinement, the trial court stated the following:

               The [trial] [c]ourt did not find the Defendant a credible witness [but
       that he] is an individual who possesses very little self-control which has
       resulted in lifelong criminal activity. His testimony did not establish any
       justification for actions leading up to the stabbing death of [the victim] .
       [The] Defendant’s long history of illegal activity and poor judgment do not
       establish him as a good candidate for probation. Society should be
       protected from an individual such as Defendant. He is undeserving of an
       alternative sentence and shall serve his eight (8) year sentence in the
       Tennessee Department of Correction.

The Defendant timely appealed the trial court’s denial of alternative sentencing.

                                       II. Analysis

       On appeal, the Defendant argues that the trial court abused its discretion in its
denial of alternative sentencing because the Defendant expressed remorse and acted in his
own defense and out of provocation. The State asserts that the trial court properly denied
alternative sentencing to the Defendant because “[t]he record supports the trial court’s
findings and demonstrates that the trial court acted consistently with the purposes and
principles of sentencing.”

                                   Standard of Review

       When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after “a proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A]n appellate court should find an abuse of discretion when it
appears that a trial court applied an incorrect legal standard, or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining.” State v.
Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652,
661 (Tenn. 1996)). The party challenging the sentence on appeal bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2015),
Sentencing Comm’n Cmts. To facilitate meaningful appellate review of a felony
sentence, the trial court must state on the record the factors it considered and the reasons
for imposing the sentence chosen. Tenn. Code Ann. § 40-35-210(e) (2015); Bise, 380
S.W.3d at 706.

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        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the 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 involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made on the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210 (2015); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5)
(2015).

                                    Manner of Service

       The abuse of discretion with a presumption of reasonableness standard of review
set by our supreme court in Bise also applies to a trial court’s decision to grant or deny
probation. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (citing Bise, 380 S.W.
3d at 708). Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary[.]” Tenn. Code Ann. § 40-35-102(6) (2015).

       Tennessee Code Annotated section 40-35-303 states that:

       [a] defendant shall be eligible for probation under this chapter if the
       sentence actually imposed upon the defendant is ten (10) years or less;
       however, no defendant shall be eligible for probation under this chapter if
       convicted of a violation of § 39-13-304, § 39-13-402, § 39-13-504, § 39-
       13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003, § 39-17-1004 or
       § 39-17-1005. A defendant shall also be eligible for probation pursuant to
       § 40-36-106(e)(3).

Tenn. Code Ann. § 40-35-303(a) (2015). A defendant has the burden of establishing that
he is suitable for probation and demonstrating that probation will “subserve the ends of
justice and the best interest of both the public and the defendant.” Carter, 254 S.W.3d at
347 (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).
                                            -7-
When considering whether to order full probation, the trial court may consider “the
circumstances of the offense, the defendant’s potential or lack of potential for
rehabilitation, whether full probation will unduly depreciate the seriousness of the
offense, and whether a sentence other than full probation would provide an effective
deterrent to others likely to commit similar crimes.” State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996) (citing Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), -
103(1)(B)).

       If a trial court denies probation, under Tennessee Code Annotated section 40-35-
103, the trial court should look to the following considerations to determine whether a
sentence of confinement is appropriate:

            (A) Confinement is necessary to protect society by restraining a
      defendant who has a long history of criminal conduct;

             (B) Confinement is necessary to avoid depreciating the seriousness
      of the offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

             (C) Measures less restrictive than confinement have frequently or
      recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2015).

        Here, the trial court found two enhancement factors applicable to the Defendant:
that the Defendant had a long history of criminal behavior, which the trial court gave
heavy weight, and that measures less than incarceration had been unsuccessful for the
Defendant, which the trial court gave moderate weight. The trial court also found that the
Defendant was not a credible witness and that “[h]is testimony did not establish any
justification for actions” leading up to the offense. The trial court denied an alternative
sentence because of the “Defendant’s long history of illegal activity and poor judgment”
and because society needed to be protected from the Defendant. Because the trial court
identified on the record reasons consistent with the purposes and principles of sentencing
for denying probation, we afford the trial court’s decision a presumption of
reasonableness. See Caudle, 388 S.W.3d at 278-79; see also State v. Kyto Sihapanya,
No. W2012-00716-SC-R11-CD, 2014 WL 2466054, at *2-3 (Tenn. Apr. 30, 2014).

       The Defendant points to State v. Biggs, 482 S.W. 3d 923 (Tenn. Crim. App. 2015)
and State v. Tammy Marie Harbison, No. M2015-01059-CCA-R3-CD, 2016 WL 613907,
at *4-6 (Tenn. Crim. App. Feb. 12, 2016), no perm. app. filed, to support his contention
that the trial court abused its discretion by ordering confinement. The Defendant also
                                           -8-
argues that “his case facts fi[t] squarely with[in] the [State v. Hooper, 29 S.W.3d 1 (Tenn.
2000)] rationale[]” because “split-second actions in defense of himself when being
attacked and in defending another were the result of provocation and sudden passion.”
However, the holdings of these cases do not apply to cases, like the current one, where
the trial court denied probation based on multiple factors. Because these cases are
factually different from the case at hand, we decline to apply their reasoning to the
Defendant’s case. We conclude that the trial court did not abuse its discretion by
ordering the Defendant to serve his sentence in confinement. The record supports the
trial court’s findings that the Defendant had a long criminal history and was unable to
successfully complete alternative sentences in the past. The Defendant is not entitled to
relief.

                                     III. Conclusion

       Based on the aforementioned reasons, we affirm the judgment of the trial court.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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