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State v. Cogshell

Court of Criminal Appeals of Tennessee, Nashville

July 21, 2017

STATE OF TENNESSEE
v.
MARIO COGSHELL

          Assigned on Briefs April 19, 2017

         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

         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

          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.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         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 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 ...


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