IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville September 15, 2015

STATE OF TENNESSEE v. MICHAEL LEE PRIEST

Direct Appeal from the Circuit Court for Sequatchie County

Nos. 2012CR136, 2013CR84 Buddy D. Perry, Judge

No. M2014-01476-CCA-R3-CD – Filed February 17, 2016

The appellant, Michael Lee Priest, pled guilty in the Sequatchie County Circuit Court to 

robbery in case number 2013CR84 and received a four-year sentence with the manner of 

service to be determined by the trial court. As a result of his guilty plea, the trial court 

revoked a four-year sentence of probation for aggravated assault in case number 

2012CR136. After a sentencing hearing, the trial court ordered that the appellant serve 

both sentences in confinement. On appeal, the appellant contends that the trial court 

erred by allowing the State to cross-examine his mother about conduct that occurred as a 

juvenile and by not granting his requests for alternative sentencing. Based upon the 

record and the parties’ briefs, we affirm the judgments of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN,

and D. KELLY THOMAS, JR., JJ., joined.

Samuel F. Hudson (on appeal and at trial), Dunlap, Tennessee, and Norman Lipton (at 

trial), Jasper, Tennessee, for the appellant, Michael Lee Priest.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; J. Michael Taylor, District Attorney General; and Steve Strain, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
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In September 2012, the appellant pled guilty in case number 2012CR136 to 

aggravated assault, a Class C felony, and received a five-year sentence to be served as 

one year in confinement and the remainder on supervised probation. On July 26, 2013, a 

probation violation warrant was filed, alleging that the appellant violated probation by

being arrested on July 20, 2013. In September 2013, the Sequatchie County Grand Jury 

indicted the appellant in case number 2013CR84 for aggravated robbery committed with 

a deadly weapon on July 20, 2013. 

On October 28, 2013, the trial court held a probation revocation hearing in case 

number 2012CR136. During the hearing, Detective Keith Herron of the Dunlap Police 

Department testified that on July 20, he learned that the appellant had “pulled a knife on 

two Hispanic males and robbed them of cash and jewelry.” Detective Herron assisted 

another officer with arresting the appellant. Detective Herron advised the appellant of his 

rights and interviewed him at the police department. The appellant gave the officer a 

written statement in which he said that he went to his girlfriend’s house and found her 

having sex with a Hispanic male. Two other Hispanic males were also in the home. The 

appellant admitted to Detective Herron that he took money, a watch, and a ring from the 

men but denied that he used a knife. On cross-examination, Detective Herron testified 

that he thought the appellant had a “drug habit.” On redirect examination, Detective 

Herron testified that the appellant appeared “normal” during the interview. The appellant

was “excited,” but nothing indicated that he was intoxicated. At the conclusion of the 

hearing, the trial court found that the appellant had violated his probation but withheld 

judgment in that case until the disposition of case number 2013CR84. 

On May 19, 2014, the appellant pled guilty in case number 2013CR84 to robbery, 

a Class C felony, as a lesser-included offense of aggravated robbery. Pursuant to the plea 

agreement, the appellant was to receive a four-year sentence with the manner of service 

to be determined by the trial court after a sentencing hearing.

At the beginning of the sentencing hearing, defense counsel advised the trial court 

that he was objecting to the presentence report because “[i]t incorrectly lists an incident 

or a juvenile conviction for [the appellant] that should not have been included in the 

Presentence Report.” The trial court agreed with defense counsel. 

Gerina Daniel, the appellant’s mother, testified that the appellant began using 

drugs when he “started hanging around with that girl.” The appellant’s father was in 

prison for most of the appellant’s life and was still incarcerated at the time of the hearing. 

Daniel said that she used to have a substance abuse problem but that she had been sober 

for almost five years. She said that if the trial court granted the appellant an alternative 

sentence, he would live with her. She said that she wanted the appellant to become 
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involved with “AA” and that he would go to church “on a regular basis.” She said the 

appellant had found God and had made a lot of changes in his life while incarcerated.

On cross-examination, Daniel acknowledged that the appellant had several 

convictions for domestic violence but stated that “I wouldn’t always say they were all his 

fault.” The following colloquy then occurred:

Q Okay. Were you ever the victim of one of those 

assaults?

A We’ve been in arguments.

Q That wasn’t my question. Were you ever the 

victim?

A He’s never assaulted me, no.

Q Okay. He had Ohio charges as a juvenile, were you 

involved in that?

[Defense counsel]: Your Honor, I’ve objected to that.

THE COURT: I think he can ask her what she knows 

about it. I think the conviction is not permissible, but I don’t 

think he’s precluded from asking and I’ll allow him to do so.

Daniel stated that the appellant had an argument with her ex-boyfriend when the 

appellant was a teenager and that “kids are unruly sometimes.”

The appellant testified that he began using drugs because his girlfriend used them 

and that he had been using drugs for only a few months at the time of the robbery. He 

stated, “It grabbed ahold of me and I didn’t realize it until it was too late.” The appellant 

acknowledged that he was “high” on the day of the crime and said that “if I wasn’t high it 

would have never happened.” He said he had been incarcerated and had not used any 

drugs since that day. The appellant was a student at Chattanooga State Community 

College at the time of his arrest, had been working since he was a juvenile, and hoped to 

return to college upon his release because he was just one semester shy of becoming a 

certified welder. He stated that he had a four-year-old son to support and that “I’m not 

above doing anything for work.” 
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The appellant testified that at first, he was “doing great” on probation for his 

aggravated assault conviction. However, he “ran into this girl” and “just lost sight of 

everything.” He said he was terrified of serving eight years in confinement and that he 

wanted to break the “cycle” of a father being incarcerated and away from his son.

Regarding the issue with his mother’s ex-boyfriend, the appellant stated, “He was, he was 

a mean person. Not just to me, not just to my brother, but to my mother as well, and I felt 

that it was my job to step in and I was took away for that.” He acknowledged that he was 

convicted of assault in Ohio when he was nineteen. He said that he was from a “rough” 

city and that “where I’m from it’s normal for fights to happen.” In 2011, the appellant 

was convicted of misdemeanor assault and domestic assault after an altercation with a 

man who was dating his son’s mother. In 2012, the appellant also entered a best interest 

plea to aggravated assault so that he could “go on about life.” He said he had been 

attending church and anger management class while in the Sequatchie County Jail and 

that he had learned about “other ways to handle anger than just acting out on somebody.” 

On cross-examination, the appellant testified that his son’s mother was present 

during the altercation with her boyfriend and that he was convicted of a second domestic 

assault “because she was there.” The appellant was not using drugs at the time of the 

assaults, and the appellant received sentences of unsupervised probation for all of his 

misdemeanor convictions. 

The State introduced the appellant’s presentence report into evidence. According 

to the report, the then twenty-five-year-old appellant dropped out of high school when he 

was in the tenth grade but obtained his GED and was taking classes in the welding 

program at Chattanooga State at the time of the offense. In the report, the appellant 

described his physical health as “excellent” but said that he had mental health problems 

and was taking medication for bipolar disorder and anxiety. The report showed no 

employment history because the appellant “was a full-time student at the time of the 

offense and has been in [custody] since that date.” The report showed that the appellant 

had one conviction of aggravated assault in 2012 when he was twenty-three, two 

convictions of domestic violence and one conviction of simple assault in 2011 when he 

was twenty-two, and one conviction of simple assault in 2008 when he was nineteen. 

The report showed that the appellant also was adjudicated delinquent of domestic 

violence in 2004 when he was fifteen.

At the conclusion of the hearing, the trial court stated that the appellant was “a 

very bright young man” but that his “assaultive behavior is escalating.” The court noted 

that the appellant had received probation in the past but that “that’s not worked.” The 

trial court ordered that the appellant serve his sentences in case numbers 2013CR84 and 

2012CR136 in confinement. The judgment reflects that the appellant was to serve his 

four-year sentence consecutively to the previous five-year sentence.
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II. Analysis

The appellant claims that the trial court erred by allowing the State to crossexamine his mother about conduct that occurred when he was a juvenile because 

domestic assault is not a crime that would qualify as a felony if committed as an adult. 

He contends that the testimony was prejudicial in that “it appeared to improperly impress 

upon the Trial Court that [he] had a long history of criminal conduct.” The appellant also 

claims that the trial court erred by ordering that he serve his “sentences” in confinement 

and that the court should have allowed him to serve his sentences on supervised probation 

with routine drug testing. The State argues that the trial court properly allowed the State 

to question the appellant’s mother about his juvenile conduct and that the court did not 

abuse its discretion by ordering confinement. We agree with the State.

Appellate review of the length, range, or manner of service of a sentence imposed 

by the trial court are to be reviewed under an abuse of discretion standard with a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to 

alternative sentencing). In sentencing a defendant, the trial court shall consider the 

following factors: (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 enhancement and 

mitigating factors; (6) any statistical information provided by the administrative office of 

the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement 

by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment. 

See Tenn.Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 

168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his 

sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

An appellant is eligible for alternative sentencing if the sentence actually imposed 

is ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentence

meets this requirement. Moreover, an appellant who is an especially mitigated or 

standard offender convicted of a Class C, D, or E felony should be considered a favorable 

candidate for alternative sentencing absent evidence to the contrary. See Tenn. Code 

Ann. § 40-35-102(6). Tennessee Code Annotated section 40-35-103(1) sets forth the 

following sentencing considerations which are utilized in determining the appropriateness 

of alternative sentencing:
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(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.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, 

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant 

should be considered in determining the sentence alternative or length of a term to be 

imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal 

conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for 

alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

As to the appellant’s claim that the trial court erred by allowing the State to crossexamine his mother about his juvenile conduct, we disagree with the appellant. 

According to the appellant, Tennessee Code Annotated section 40-35-207(a)(4) “does not 

allow the PSI report to include any prior juvenile convictions except those that would be 

a Class A or B felony if committed by an adult.” However, the appellant has 

misinterpreted the statute. Tennessee Code Annotated section 40-35-207(a)(4) provides 

that the presentence report must include acts a defendant committed as a juvenile that 

would constitute Class A or B felonies if committed by an adult but is silent as to acts 

committed as a juvenile that would constitute lesser felonies or misdemeanors. 

Moreover, our supreme court has stated that 

“[i]t would serve neither the interest of society, nor protect 

the public from further criminal conduct by the defendant, to 

wipe the slate clean and deny the sentencing authority the 

benefit of a defendant’s past history of criminal activity, in 

assessing his sentence, simply because some part of that 

history occurred during his juvenile years.”

State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993) (quoting State v. Stockton, 733 S.W.2d 

111, 112-13 (Tenn. Crim. App. 1986)). This includes consideration of acts committed as 

a juvenile that would constitute misdemeanors if committed by an adult. See, e.g., State 
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v. Farmer, 239 S.W.3d 752, 756 (Tenn. Crim. App. 2007) (concluding that trial court 

properly denied alternative sentencing based upon defendant’s prior criminal record, 

which included juvenile adjudications for disorderly conduct and criminal trespass); State 

v. Robert Donterious Conner, No. M2007-01619-CCA-R3-CD, 2008 WL 4614449, at 

*14 (Tenn. Crim. App. at Nashville, Oct. 17, 2008) (concluding that trial court properly 

considered defendant’s prior juvenile record, which included adjudications of assault and 

disorderly conduct, in ordering consecutive sentencing). 

As to the appellant’s claim that the trial court erred by denying his request for 

alternative sentencing, the trial court was troubled by the young appellant’s “escalating” 

behavior despite his receiving prior sentences of probation and specifically stated that it 

was denying alternative sentencing based upon considerations (A) and (C), that 

confinement was necessary to protect society by restraining the defendant who had a long 

history of criminal conduct and that measures less restrictive than confinement have 

frequently or recently been applied unsuccessfully to the defendant. The record reflects 

that the appellant committed assaults, then domestic violence, then aggravated assault,

and now robbery. Moreover, prior probation sentences have done nothing to curtail his 

behavior. Thus, we conclude that the trial court did not abuse its discretion by ordering 

that the appellant serve his four-year sentence for robbery in confinement. 

To the extent that the appellant is arguing that the trial court also erred by denying 

his request for alternative sentencing in case number 2012CR136, upon finding by a 

preponderance of the evidence that the appellant has violated the terms of his probation, a 

trial court is authorized to order an appellant to serve the balance of his original sentence 

in confinement. See Tenn. Code Ann. §§ 40-35-310, -311(e); State v. Harkins, 811 

S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in the sound discretion of the 

trial court and will not be overturned by this court absent an abuse of that discretion. 

State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see State v. Pollard, 432 

S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of discretion with a presumption of 

reasonableness is the appropriate standard of appellate review for all sentencing 

decisions). “A trial court abuses its discretion when it applies incorrect legal standards, 

reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the 

proof, or applies reasoning that causes an injustice to the complaining party.” State v. 

Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

The appellant does not dispute that he violated probation. This court has 

repeatedly cautioned that “an accused, already on probation, is not entitled to a second 

grant of probation or another form of alternative sentencing.” State v. Jeffrey A. 

Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at 

Nashville, Feb. 10, 1999); see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-

CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002). Thus, the 
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trial court also did not err by ordering that the appellant serve the balance of the five-year

sentence in confinement.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial 

court.

_________________________________ 

NORMA MCGEE OGLE, JUDGE