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

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No. M2017-01885-CCA-R3-CD

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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.

07/13/2018
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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.

 

1We 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. 
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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 
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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.
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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 
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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-
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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: 
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[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.
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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.

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ROBERT L. HOLLOWAY, JR., JUDGE