                                                                                         07/21/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2017

               STATE OF TENNESSEE v. MARIO COGSHELL

               Appeal from the Circuit Court for Robertson County
       No. 74CC3-2014-CR-209, 74CC4-2015-CR-668, 75CC4-2015-CR-666
                         William R. Goodman, III, Judge
                    ___________________________________

                           No. M2016-01658-CCA-R3-CD
                       ___________________________________

The Defendant, Mario Cogshell, entered guilty pleas in the Robertson County Circuit
Court to three counts of possessing less than 0.5 grams of cocaine with intent to sell. The
trial court imposed an effective sentence of ten years to be served in confinement. On
appeal, the Defendant argues that his sentence is excessive. Upon review, we affirm the
judgments of the trial court. However, we remand the case for entry of proper judgment
forms for the charges that were dismissed as a result of the guilty plea.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                                  and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and JOHN EVERETT WILLIAMS, JJ., joined.

Brittney Hollis (on appeal) and Rob McKinney (at sentencing hearing), Nashville,
Tennessee, for the Defendant-Appellant, Mario Cogshell.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; John W. Carney, District Attorney General; and Jason White, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

       On March 19, 2014, the Defendant was indicted for selling over 0.5 grams of
cocaine in count one and delivering over 0.5 grams of cocaine in count two, in Case No.
74CC3-2014-CR-209. While out on bail for these charges, the Robertson County Grand
Jury returned two more indictments against the Defendant in Case Nos. 74CC4-2015-CR-
668 and 75CC4-2015-CR-666. Each indictment charged the Defendant with selling over
0.5 grams of cocaine in count one and delivering over 0.5 grams of cocaine in count two.
On April 4, 2016, the Defendant entered guilty pleas to three counts of possessing less
than 0.5 grams of cocaine with intent to sell.1 The judgment forms for each conviction
reflect that the delivery charges in count two of each indictment were dismissed.

       At the July 22, 2016 sentencing hearing, the Defendant’s presentence report was
introduced without objection. The report reflected that the instant offenses occurred
when the Defendant sold crack cocaine to a confidential informant on three separate
occasions. The report also included a statement from the Defendant that he committed
the crimes “to provide for [his] family” and that he had “tried repeatedly to get a job” but
that “[i]t is very hard for a convicted felon to get a job.” The Defendant’s extensive
criminal history spanned from 1992 to 2015 and included two felony drug convictions for
sale and possession of cocaine, two casual exchange convictions, two convictions for
possession of marijuana, a conviction for simple possession, a DUI conviction,
convictions for driving with a suspended license and without a license, a conviction for
failure to appear, and one conviction for domestic violence. The presentence report
showed that the Defendant had been serving a community corrections sentence from
February 2007 to October 2010 and that the sentence was revoked. The report also
showed that the Defendant was released on parole in January 2012.

       The report included a statement from the Defendant that he began delivering and
using drugs at a young age and that he continued to sell drugs because “‘[he] liked the
money.’” The Defendant reported a history of regularly using marijuana, cocaine, and
alcohol, and reported completing and participating in various substance abuse treatment
programs. Regarding his personal history, the Defendant reported that he was raised by
his grandmother and grew up on welfare, eventually quitting school in the ninth grade
due to bullying. The Defendant listed six children and said that he also raised his wife’s
step-daughter as his own since she was born. The Defendant reported that he was very
involved in his childrens’ lives and paid child support.

      The State introduced additional evidence regarding the Defendant’s history of
drug convictions over the past ten years. The Defendant’s first felony conviction for

        1
          The record on appeal does not include the guilty plea hearing transcript. The only document
detailing the Defendant’s guilty plea is a handwritten “Petition for Waiver of Trial by Jury and Request
for Acceptance of Plea of Guilty,” which is illegible. The judgment forms also do not include the specific
offense to which the Defendant pled; however, we glean this information from the parties’ appellate
briefs. Additionally, most of the relevant testimony in this case was presented at the sentencing hearing.
Therefore, we conclude that the record is adequate for our review. See State v. Caudle, 388 S.W.3d 273,
279 (Tenn. 2012) (“[W]hen a record does not include a transcript of the hearing on a guilty plea, the
Court of Criminal Appeals should determine on a case-by-case basis whether the record is sufficient for a
meaningful review[.]”).
                                                  -2-
possession of cocaine was in February 2007, and the Defendant received a six-year
sentence with six months’ incarceration and five years and six months on community
corrections. The Defendant violated the rules of his community corrections sentence on
three separate occasions from 2008 to 2010, which led to additional possession charges.
The first violation occurred because the Defendant tested positive for cocaine and
marijuana and was out past curfew. The second violation occurred because the
Defendant was arrested and charged with possession of cocaine.

       The Defendant’s community corrections sentence was reinstated after his first two
violations; however, the third violation resulted in a guilty plea to the sale of cocaine
under 0.5 grams, a Class C Felony, for which the Defendant was sentenced to three years’
imprisonment on October 29, 2010. After being released on parole in January 2012, the
Defendant committed yet another drug offense in May 2013 and pled guilty to casual
exchange, for which he received a sentence of 11 months and 29 days to serve in the
county jail. The instant offenses were subsequently committed in July 2013 and May
2015. The Defendant was released on bail for the July 2013 charges on June 17, 2014,
and he committed the following offenses on May 7 and May 26, 2015.

      The Defendant’s eleven-year-old son, M.C.,2 testified that his father had been
M.C.’s sole caretaker his entire life. M.C. also said that the Defendant was a good father
and he agreed that the Defendant was doing better now even though he had been through
some bad times. M.C. said that when his father was incarcerated M.C.’s aunt or
grandmother took care of him but that he always went back to live with the Defendant
when he was released.

       The Defendant’s wife, Jasmine Cogshell, testified that she had been married to the
Defendant for one year. Cogshell said that she worked cleaning houses and that the
Defendant had been working with her while he looked for another job. Cogshell said that
the Defendant had recently changed for the better because he was more involved with his
children and stayed at home more. Cogshell also said that the Defendant had a difficult
time finding a job as a convicted felon. Cogshell testified that the Defendant had always
been a great father and had always supported his children.

       The Defendant made an allocution, where he apologized to the court and “[took]
the blame” for his actions. The Defendant also asked the court for another chance. After
hearing the proof and arguments from counsel, the trial court sentenced the Defendant to
five years for all three convictions, with his two 2015 convictions in Case Nos. 74CC4-
2015-CR-666 and 74CC4-2015-CR-668 running concurrently with each other and
consecutively to his 2014 conviction in Case No. 74CC3-2014-CR-209, for an effective

      2
          It is the policy of this court to refer to minors by their initials only.
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sentence of ten years. The trial court applied one mitigating factor, that the Defendant
was motivated by a desire to provide necessities for his family or self, and two
enhancement factors, that the Defendant had a previous criminal history and that the
Defendant committed one or more of the offenses while released on bail. See T.C.A. §
40-35-113(7); see also id. § 40-35-114(1), (13). Because of the Defendant’s unsuccessful
attempts at probation and community corrections, the trial court ordered the sentence to
be served in confinement. It is from this order that the Defendant now timely appeals.

                                        ANALYSIS

        On appeal, the Defendant argues that his sentence is excessive. The Defendant
also cites an incorrect standard of review and argues that confinement was not necessary
in this case. The State responds that the trial court properly denied an alternative
sentence based on the Defendant’s criminal history and history of probation violations.
We agree with the State.

        “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A
trial court must consider the following when determining a defendant’s specific sentence
and the appropriate combination of sentencing alternatives: (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 sections 40-35-113 and
40-35-114; (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 wishes to make in the defendant’s own behalf about sentencing. T.C.A. §§
40-35-210(b)(1)-(7). In addition, “[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.” Id. § 40-35-103(5). The court must
impose a sentence “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. §§ 40-35-103(2), (4).

      Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code
Annotated section 40-35-102(6)(A) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable
                                            -4-
candidate for alternative sentencing options in the absence of evidence to the contrary[.]”
However, a trial court “shall consider, but is not bound by, the advisory sentencing
guideline” in section 40-35-102(6)(A). See T.C.A. § 40-35-102(6)(D). Despite a
defendant’s eligibility, he or she is not automatically entitled to probation as a matter of
law. Id. § 40-35-303(b), Sentencing Comm’n Cmts. Moreover, the defendant bears the
burden of establishing his suitability for probation. Id. § 40-35-303(b).

        In determining whether to deny alternative sentencing and impose a sentence of
total confinement, the trial court must consider if:

       (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[.]

Id. §§ 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        Here, the Defendant does not clearly state why he believes his sentence is
excessive. As a Range I, standard offender, the Defendant was subject to a sentencing
range of three to six years for each count of possession with intent to sell, a Class C
felony. See T.C.A. § 39-17-417(c)(2)(A); see also id. § 40-35-112(a)(3). Thus, the trial
court’s five-year sentences were within the statutory range. In determining the
appropriate length of the Defendant’s sentences, the trial court applied one mitigating
factor and two enhancement factors, which the Defendant does not challenge. The trial
court also properly imposed mandatory concurrent sentences for the convictions which
the Defendant committed while on bail. See id. § 40-20-111(b); see also Tenn. R. Crim.
P. 32(c)(3).

       The Defendant argues that “[i]ncarceration is not going to serve the ends of justice
by appreciating the seriousness of the offense,” and that “[c]onfinement in this case
would not be necessary to protect society by restraining a defendant with a long criminal
history.” We interpret the Defendant’s argument as a challenge to the trial court’s
imposition of full confinement as opposed to a sentence of probation or split
confinement. However, we also note that, contrary to the Defendant’s assertions, he does
have a long criminal history and his own counsel stated at the sentencing hearing that
“there should be some confinement, because if the [c]ourt let[]s [the Defendant] go
                                           -5-
without a little - - without some shock therapy it would depreciate the seriousness.” The
Defendant primarily relies on his difficult childhood as support that “justice is not served
by ordering [the Defendant] to serve ten (10) years incarcerated.”

       The Defendant had two prior felony convictions and numerous misdemeanors,
most being drug offenses. The Defendant was also given a community corrections
sentence in 2007, which he violated repeatedly over three years. Then, after serving a
three-year sentence in confinement and being released on parole, the Defendant again
committed more drug offenses. Moreover, two of the three instant offenses were
committed while the Defendant was released on bail for the first offense. The Defendant
has been given many chances at rehabilitation and release into the community, yet has
continued to offend for more than ten years. Because the record shows that the trial court
carefully considered the evidence, enhancement and mitigating factors, and the purposes
and principles of sentencing prior to imposing a sentence of five years for each
conviction, the Defendant has failed “to either establish an abuse of discretion or
otherwise overcome the presumption of reasonableness afforded sentences which reflect
a proper application of the purposes and principles of our statutory scheme.” Caudle, 388
S.W.3d at 280. Additionally, the record shows that the trial court properly relied on the
Defendant’s criminal history and the Defendant’s extensive history of committing
offenses while subject to measures less restrictive than confinement. As such, the
Defendant has failed to prove that the trial court abused its discretion in denying an
alternative sentence.

       Lastly, we detect errors in the entry of the judgment forms in this case. The record
does not contain judgment forms disposing of the three indicted offenses that were
dismissed as a result of the Defendant’s guilty plea. The three judgment forms provided
are for count one of each indictment in Case Nos. 74CC3-2014-CR-209, 74CC4-2015-
CR-666, and 74CC4-2015-CR-668. The “Special Conditions” box of each judgment
form includes some variation of the following note: “Sentence is to serve with TDOC.
Count 2 dismissed.” On remand, the trial court should ascertain whether judgment forms
exist for the three dismissed offenses. If there are none, the trial court shall enter
judgment forms for the second count of all three indictments at issue which were
dismissed as a result of the Defendant’s guilty plea. See State v. Davidson, 509 S.W.3d
156 (Tenn. 2016) (requiring a trial court to prepare a uniform judgment document for
each count of the indictment).

                                     CONCLUSION

       Based on the aforementioned authorities and reasoning, the judgments of the trial
court are affirmed and remanded to the trial court. On remand, the trial court should
determine if proper judgment forms exist for count two of each indictment, as explained
                                           -6-
above. If there are no judgment forms disposing of these charges, the trial court shall
enter the appropriate judgment forms.




                                                  ______________________________

                                                  CAMILLE R. McMULLEN, JUDGE




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