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State v. Carter2/13/1998
AFFIRMED
The defendant, Donnie Ray Carter, pled guilty in the Circuit Court of Hardin County to the offense of aggravated assault and received a sentence of five (5) years. The sole issue in this appeal is whether the trial court erred in determining the length of the sentence. Finding no error, we AFFIRM the judgment of the trial court.
I
Defendant was originally charged with the offense of attempted second degree murder. Defendant entered a guilty plea to the reduced charge of aggravated assault with the sentence to be determined by the trial Judge. The trial Judge found two (2) enhancement factors, no mitigating factors and sentenced the defendant to five (5) years incarceration in the Tennessee Department of Correction.
The sole issue presented by the defendant in this appeal is whether the trial court erred "in its use of enhancement factors and mitigating factors in setting the length of the appellant's sentences."
II
The facts as stated by the prosecuting attorney to the trial court at the time of the guilty plea were as follows:
On May 3 of this year, this Defendant was in an establishment here in the county called The County Line Tavern and he had been drinking. He had an altercation with an individual named David Austin, who had also been drinking. Mr. Austin approached this Defendant in regard to something that had occurred in the past. There was some Discussion about that. And the victim, Mr. Austin, then struck a blow toward the Defendant Carter.
Carter, at that time, pulls out a knife and cuts up Mr. Austin cutting him with that knife several times. He runs from that location. He leaves that location and goes to Alabama, where he spends the night down there. And he is brought to the jail, I believe, the following day by someone and turned over to the authorities at the Hardin County Jail.
No testimony was introduced at the sentencing hearing. The pre- sentence report was admitted and revealed that the defendant had the following prior convictions: second degree felony assault in Alabama, two (2) Tennessee convictions for driving under the influence of an intoxicant, and two (2) Tennessee convictions for driving on a revoked license.
The trial court applied the following enhancement factors: (1) defendant had a history of prior convictions (Tenn. Code Ann. § 40-35- 114(1)), and (2) a deadly weapon was employed in the commission of the aggravated assault (Tenn. Code Ann. § 40-35-114(9)). Defendant advocated the application of the following mitigating factors: (1) the defendant acted under strong provocation (Tenn. Code Ann. § 40-35- 113(2)), and (2) the defendant committed the offense under such unusual circumstances that it was unlikely that a sustained intent to violate the law motivated his conduct (Tenn. Code Ann. § 40-35-113(11)). The trial court rejected both mitigating factors and sentenced the defendant to five (5) years in the Tennessee Department of Correction.
III
The state contends the defendant has no standing to pursue this appeal since he waived appeal upon the entry of his guilty plea. The written plea of guilty was submitted on what appears to be a standard guilty plea form. The form contains the standard language used in plea agreements, including a waiver of appeal; however, there was no agreement in this case as to the sentence. The transcripts of the guilty plea hearing and the sentencing hearing do not reveal any discussion as to the defendant waiving his right to appeal his sentence.
This is a recurring problem. See State v. Jason Pickens, C.C.A. No. 02C01-9612-CC-00486, Hardin County (Tenn. Crim. App
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