                                                                                          07/13/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 20, 2018

          STATE OF TENNESSEE v. JAMES ALLEN GOOCH, JR.

                 Appeal from the Criminal Court for Sumner County
                     No. 792-2009       Dee David Gay, Judge
                     ___________________________________

                           No. M2017-01885-CCA-R3-CD
                       ___________________________________


A Sumner County jury convicted James Allen Gooch, Jr., Defendant, of sale of 0.5
ounces or more of marijuana within one thousand feet of a Drug-Free Zone and the
attempt to sell 0.5 grams or more of cocaine. The trial court sentenced Defendant, as a
Range III persistent offender, to an effective sentence of twenty-seven years. After
Defendant filed a Tennessee Rule of Criminal Procedure 36.1 motion, the trial court
determined that Defendant’s sentence was void and ordered a new sentencing hearing.
The trial court then sentenced Defendant, as a Range II multiple offender, to a total
effective sentence of sixteen years. On appeal, Defendant argues that the State waived
the ability to seek a Range II sentence when it filed a notice of intent to seek a Range III
sentence. He further argues that the trial court did not have jurisdiction to convict or
sentence him because the State did not have an arrest warrant charging him with the
present offenses. Lastly, he asserts in his reply brief that the State “committed a fraud
upon the court” because his resentencing was based upon a presentence report that was
erroneously admitted without personal knowledge. After a thorough review of the facts
and applicable case law, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

James Allen Gooch, Jr., Hartsville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Ray Whitley, District Attorney General; and Lytle A. James, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                               I. Factual and Procedural History

      Defendant was found guilty by a Sumner County jury of the sale of 0.5 ounces or
more of marijuana within one thousand feet of a Drug-Free Zone, a Class D felony, in
Count 1, and the attempt to sell 0.5 grams or more of cocaine, a Class C felony, in Count
2. The trial court sentenced Defendant as a Range III persistent offender to consecutive
terms of twelve years for Count 1 and fifteen years for Count 2, to be served
consecutively to the sentence in another Sumner County case, docket number CR538-05,
from January 2007.

        In Defendant’s direct appeal, this court determined “that the trial court properly
sentenced” Defendant and affirmed the judgments. State v. James Allen Gooch, No.
M2011-01135-CCA-R3-CD, 2012 WL 4358195, at *1 (Tenn. Crim. App. Sept. 25,
2012). Defendant then sought post-conviction relief, which was denied. This court
affirmed that denial on appeal. James Allen Gooch v. State, No. M2014-00454-CCA-R3-
PC, 2015 WL 498724, at *1 (Tenn. Crim. App. Feb. 4, 2015). Defendant next filed a
Tennessee Rule of Criminal Procedure Rule 36.1 motion claiming he was not provided
pretrial jail credits. The trial court summarily dismissed the motion and this court
affirmed the dismissal. State v. James Allen Gooch, No. M2016-00359-CCA-R3-CD,
2016 WL 6609712, at *1 (Tenn. Crim. App. Nov. 9, 2016).

        On March 15, 2017, Defendant filed another motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, this time claiming that the trial
court had erroneously considered a prior misdemeanor conviction in determining his
status as a Range III persistent offender. In an order filed on April 4, 2017, the trial court
found “that the [Defendant] is absolutely correct in his claim that this court imposed
improper sentences,” declared that the sentences were “void,” and ordered “another
sentencing hearing on these convictions.”1

       In the subsequent sentencing hearing, Blake Mohammed of the Tennessee
Department of Correction Probation and Parole Division testified that he prepared
Defendant’s presentence report. Mr. Mohammed stated that Defendant refused to
cooperate with the preparation of the report. Mr. Mohammed also testified about
Defendant’s criminal behavior while in prison, including possession of a deadly weapon
as an inmate.
        1
         We note that the State did not appeal the trial court’s order granting Defendant’s Rule 36.1
motion, nor did the State claim in this appeal that the trial court erred in finding that Defendant’s
sentences were illegal and in granting a new sentencing hearing. We will therefore limit our analysis to
the sentencing issues raised by Defendant in this appeal.
                                                 -2-
      The trial court considered the following prior convictions in its resentencing
determination:

Offense                         Offense Date                    Sentence
Possession of cocaine           July 8, 2005                    10 years
                                                                Defendant was on parole at
                                                                the time of this offense.
Possession of cocaine           November 20, 2002               8 years
Aggravated burglary             August 31, 1999                 5 years
Aggravated burglary             August 31, 1999                 5 years

       Defendant argued against any resentencing, claiming that because the State filed a
notice of intent to seek a Range III sentence prior to his initial sentencing, the State
waived any ability to seek resentencing as a Range II offender. Defendant also argued
that the original indictment was defective because he was never served with an arrest
warrant. The State explained that, for the original trial, it sought to have Defendant
sentenced as a career offender, but the trial court sentenced him as a Range III persistent
offender.

        The trial court rejected Defendant’s argument regarding the State’s ability to seek
a Range II sentence for Defendant. The trial court considered the two offenses from
August 31, 1999, as one offense for the purposes of finding Defendant’s sentencing
range. The trial court determined that Defendant was a Range II multiple offender and
noted that his sentencing range for Count 1 was four to eight years with a release
eligibility of thirty-five percent. The trial court stated that Defendant must serve the
minimum sentence of four years at one hundred percent pursuant to Tennessee Code
Annotated section 39-17-432(c). Defendant’s range for Count 2 was six to ten years at
thirty-five percent.

       The trial court found that Defendant committed the present offenses while on
parole and applied that enhancement factor. The trial court found no mitigating factors.
In considering the purposes and principles of sentencing, the trial court relied on the need
to order a sentence “that’s just in relation to the fact that we are at war in a drug war.” It
further noted the need for punishment “sufficient to prevent crime and promote respect
for law.” The trial court noted Defendant’s lack of potential for rehabilitation, including
his lack of cooperation in the preparation of the presentence report.

       Due to Defendant’s long history of criminal conduct, criminal conduct while
incarcerated, and previous failures to abide by the terms alternative sentencing, the trial
court determined that confinement was appropriate “to avoid depreciating the seriousness
                                           -3-
of the offense” and to “provide an effective deterren[t] to others likely to commit similar
offenses.”

       In considering consecutive sentencing, the trial court determined that Defendant
had an extensive record of criminal activity. The trial court resentenced Defendant as a
Range II multiple offender to consecutive terms of six years and ten years, for a total
effective sentence of sixteen years, to be served consecutively to the sentence for which
he was on parole at the time he committed the present offenses.

       Defendant now timely appeals his sentences.

                                        II. Analysis

        Defendant asserts that the trial court erred by sentencing him as a Range II
multiple offender because the State waived the ability to seek a Range II sentence when it
filed a notice of intent to seek a Range III sentence. He further argues that the trial court
did not have jurisdiction to convict or sentence him because the State did not have an
arrest warrant charging him with the present offenses. Finally, Defendant argues that the
State “committed fraud on the court” by allowing Mr. Mohammed to testify to a
presentence report prepared by Sumner County probation officer Carolyn Megar. The
State argues that the trial court properly sentenced Defendant as a Range II offender, and
that the trial court had jurisdiction. We agree with the State.

       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. 2017). The party challenging the sentence on appeal bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2017),
Sentencing Comm’n Cmts.

       To facilitate meaningful appellate review, 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) (2017); Bise, 380 S.W.3d at 706. While the trial court should
consider enhancement and mitigating factors, such factors are advisory only. See Tenn.
Code Ann. § 40-35-114 (2017); see also Bise, 380 S.W.3d at 699 n.33, 704; State v.
Carter, 254 S.W.3d 335, 346 (Tenn. 2008). A trial court’s “misapplication of an
enhancement or mitigation factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706.



                                            -4-
                              A. Waiver of Range II Sentence

        Defendant relies on State v. Mahler, 735 S.W.2d 226 (Tenn. 1987) and State v.
Watkins, 804 S.W.2d 884 (Tenn. 1991) to support his claim that the State waived the
right to sentence him as a Range II offender because it filed a notice of intent to seek a
Range III sentence. The State responds that there is no such waiver provision present in
Mahler and Watkins. We agree with the State.

        Pursuant to Tennessee Code Annotated section 40-35-202(a), the State is required
to file a notice of intent to seek a sentence other than as a standard offender. Section 40-
35-202(a) states the following, in pertinent part: “If the district attorney general believes
that a defendant should be sentenced as a multiple, persistent or career offender, the
district attorney general shall file a statement thereof with the court and defense counsel
not less than ten (10) days before trial or acceptance of a guilty plea.” Even if the State
does not file a timely notice of intent to seek an enhanced punishment as a Range II
offender, “any error which might have occurred [would be] harmless and would not
vitiate the sentence unless the accused could show some prejudice because of the late
filing.” State v. Stephenson, 752 S.W.2d 80, 81 (Tenn. 1988). Moreover, this court has
held that the defendant must establish that he was prejudiced by a defect in the notice of
intent to seek an enhanced punishment before relief can be granted. State v. Debro, 787
S.W.2d 932, 934 (Tenn. Crim. App. 1989).

       The cases upon which Defendant relies are inapplicable to his case. First, in
Mahler, the State reduced Defendant’s charge from first-degree murder to second-degree
murder and agreed to seek a sentence for a Range II aggravated offender as a part of a
plea negotiation. Mahler, 735 S.W.2d at 227. Our supreme court stated:

       [A]ny question as to the classification of appellant as a Range II offender or
       as to his release eligibility was waived by the guilty plea. . . . [A]t most[,]
       [the classification] rendered the sentence subject to attack on direct review
       by appeal. Appellant waived any right of appeal in the guilty plea
       proceedings.

Id. at 228.

        Second, in Watkins, pursuant to a plea agreement, Defendant was improperly
sentenced as a Range I offender instead of a Range II offender. Watkins, 804 S.W.2d at
884. This court determined on direct appeal that, because defendant had been on parole
at the time of his offense, he could only be sentenced as a Range II offender. Id. Upon
further review, our supreme court noted, “The same waiver rule that was invoked against
the defendant in Mahler should apply equally to the state, especially where, as here, it
                                            -5-
enters into a negotiated plea agreement and thus actively encourages the trial court to set
the defendant’s sentence in the ‘wrong’ range.” Id. at 886.

        Both Mahler and Watkins involved an agreed-upon plea negotiation in which
either the defendant or the State waived the ability to challenge the sentence after the fact.
No such plea agreement exists in the present case.

       This court addressed an issue similar to Defendant’s assertion in Richard Madkins
v. State, No. W2012-02450-CCA-R3-HC, 2013 WL 5761397, at *1 (Tenn. Crim. App.
July 2, 2013), perm. app. denied (Tenn. Dec. 10, 2013). In Richard Madkins, the
defendant sought habeas corpus relief on the grounds that the State had waived Range I
sentencing when it filed a notice of intent to seek Range III punishment. Id. This court
noted that Mahler and Watkins were distinguishable from Richard Madkins:

              The Petitioner next argues that his sentence violates the “waiver rule
       announced in Stave v. Mahler, 735 S.W.2d 226 (Tenn. 1987).” The
       Petitioner apparently interprets Mahler’s “waiver rule” to mean that if a
       defendant can waive range classification, then the State’s filing of a notice
       of intent to seek a certain sentencing range limits a trial court’s jurisdiction
       to sentencing him at the range the State is seeking. The Petitioner’s
       argument relies on an interpretation of Mahler in State v. Watkins, 804
       S.W.2d 884, 886 (Tenn. 1991). Both Mahler and Watkins, however, are
       distinguishable from the instant case.

              First, Mahler was a post-conviction appeal, and Watkins was a direct
       appeal. Furthermore, both sentences in those cases were imposed as the
       result of [negotiated] guilty pleas instead of jury verdicts. Since the
       Petitioner’s conviction was the result of a jury verdict, neither Mahler nor
       Watkins [is] determinative of our inquiry.

Id. at *4.

      Moreover, in Defendant’s direct appeal, this court explained that notice of the
State’s intent to seek a sentence as a career offender was sufficient for Defendant’s lesser
sentence as a Range III persistent offender. State v. James Allen Gooch, Jr., No. M2011-
01135-CCA-R3-CD, 2012 WL 4358195, at *13-14 (Tenn. Crim. App. Sept. 25, 2012),
perm. app. denied (Tenn. Jan. 15, 2013). This court stated the following, in pertinent
part:

             On September 3, 2009, the State filed a notice of intent to seek
       enhanced punishment, pursuant to Tennessee Code Annotated section 40-
                                            -6-
       35-202(a). . . . The notice to seek enhancement also stated that, if found
       guilty, the court should sentence [Defendant] as a career offender. . . .

       ....

       The notice filed by the State gave “fair notice to accused that he is exposed
       to other than standard sentencing.” [State v. Adams, 788 S.W.2d 557, 559
       (Tenn. 1990).] . . . Furthermore, [Defendant] was not misled or surprised
       by the State’s seeking enhanced punishment.                 Thus, the notice
       accomplished the purpose of the statute. See State v. Chase, 873 S.W.2d 7,
       9 (Tenn. Crim. App. 1993). “We may assume that [Defendant] was aware
       of his own extensive criminal history prior to trial and note that he has
       failed to show any prejudice arising from a lack of knowledge about which
       particular range the State was contemplating to seek for purposes of
       sentencing.” State v. Taylor, 63 S.W.3d 400, 413 (Tenn. Crim. App. 2001).
       . . . Based on his prior convictions, the trial court sentenced [Defendant]
       within the appropriate range, which was actually a lesser range than that
       listed on the notice of intent to seek enhanced punishment. Accordingly,
       we conclude that the trial court did not err in sentencing [Defendant] as a
       persistent offender. [Defendant] is not entitled to relief on this issue.

Id. at *12, 14.

        At the resentencing hearing, Defendant received a lesser sentence as a Range II
offender than he previously received as a Range III offender. Therefore, because he
received a lesser sentence at his resentencing hearing than he had notice for at trial,
Defendant cannot show prejudice from a lack of notice of intent to seek a Range II
sentence. Because Defendant’s classification as a Range II offender is not the result of a
negotiated plea, because offender classification is non-jurisdictional, and because
Defendant had prior notice that the State would seek other than a standard sentence, the
State did not waive the ability to seek enhanced sentencing, and Defendant is not entitled
to relief.

                                B. Sentencing Jurisdiction

       “Sentencing is jurisdictional and must be executed in compliance with the 1989
[Sentencing] Act.” McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000). Defendant
argues that “the trial court did not have jurisdiction to convict or sentence [him] because
the State did not have an arrest warrant charging him with these offenses.” Defendant
relies on State v. Jones, 512 S.W.3d 258 (Tenn. Crim. App. 2016) to support his
argument. This court stated in Jones:
                                           -7-
       [T]he form affidavit of complaint did not conform to the requirements of an
       arrest warrant. Chiefly, it did not contain an “order that the defendant be
       arrested and brought before the nearest appropriate magistrate in the county
       of arrest.” Tenn. R. Crim. P. 4(c)(1)(E). It appears that the form affidavit
       of complaint was drafted under the mistaken belief that attaching a
       “probable cause determination” to the affidavit of complaint was sufficient
       to commence prosecution for warrantless arrests. This is evidenced by the
       fact that beneath the “probable cause determination,” options for an arrest
       warrant or criminal summons to “issue” were listed but they were left
       unchecked in favor of a notation that the defendant had been “arrested
       without warrant.”

Id. at 263.

       In Jones, a notary public, rather than a qualified judicial officer, signed the
affidavit of complaint. Id. Therefore, the Jones affidavit was invalid because it did not
meet procedural and constitutional requirements. Id. at 264. Thus, any arrest warrant
issuing from the Jones affidavit would have also been invalid. Id. Defendant’s case is
distinguishable from Jones because the clerk, who was authorized to issue the arrest
warrant as a qualified judicial officer, signed both the affidavit of complaint and the
arrest warrant. See Tenn. R. Crim. P. 4(a) (stating “the magistrate or clerk shall issue an
arrest warrant”) (emphasis added); see generally Jones, 512 S.W.3d at 264. The affidavit
of complaint in the present case has a properly issued “order that the defendant be
arrested[.]” Tenn. R. Crim. P. 4(c)(1)(E). Therefore, the arrest warrant is valid, and
Defendant is not entitled to relief.

                                      C. Presentence Report

       Defendant argues in his reply brief that the State “committed a fraud upon the
court” because his resentencing was based upon a presentence report admitted without
personal knowledge. Specifically, Defendant asserts that the presentence report was
prepared by Ms. Megar but introduced by Mr. Mohammed at the resentencing hearing.2



       2
          In Defendant’s reply brief, he states that “the State[] committed fraud on the trial court by
introducing the March 22, 2011 presentence report that was prepared by Carolyn Megar and not by Blake
Mohamed [sic] into evidence as Exhibit 1. The State allowed Mr. Mohamed [sic] to testif[y] to Ms.
Megar[’s] 13[-]page[] presentence report instead of the incomplete[] presentence report he had prepared
himself[.]” (internal citation omitted). While Defendant does not specifically claim lack of personal
knowledge on the part of Mr. Mohammed, we infer this from his arguments.
                                                 -8-
        First, we note that Defendant did not assert this argument until his reply brief, and
his argument is therefore waived. See State v. Walter Francis Fitzpatrick, III, No.
E2014-01864-CCA-R3-CD, 2015 WL 5242915, at *8 (Tenn. Crim. App. Sept. 8, 2015),
perm. app. denied (Tenn. Feb. 18, 2016); see also Caruthers v. State, 814 S.W.2d 64,
(Tenn. Crim. App. 1991) (“A reply brief is limited in scope to a rebuttal of the argument
advanced in the appellee’s brief. An appellant cannot abandon an argument advanced in
his brief and advance a new argument to support an issue in the reply brief.”).

        Further, Defendant did not object at the sentencing hearing to the admission of the
presentence report as an exhibit or to any of the report’s contents. “The failure to make a
contemporaneous objection constituted waiver of the issue on appeal.” State v. Gilley,
297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). Therefore, the issue is waived on this
ground as well. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party . . . who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”); see also State
v. Joshua Lishun Brewer, No. E2015-02178-CCA-R3-CD, 2016 WL 6087677 at *5
(Tenn. Crim. App. Oct. 18, 2016) (concluding that the defendant waived an argument by
failing to “object at the sentencing hearing to the admission of the presentence report as
an exhibit or to any of the report’s contents”), no perm. app. filed.

                                      II. Conclusion

       For the aforementioned reasons, we affirm the judgments of the trial court.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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