State v. Donnie Carter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
February 9, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9706-CC-00208
Appellee, )
) HARDIN COUNTY
VS. )
) HON. C. CREED McGINLEY,
DONNIE RAY CARTER, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
RICHARD W. DeBERRY CLINTON J. MORGAN
Assistant Public Defender Assistant Attorney General
117 North Forrest Ave. Cordell Hull Building, 2nd Floor
P. O. Box 663 425 Fifth Avenue North
Camden, TN 38320-0663 Nashville, TN 37243-0493
G. ROBERT RADFORD
District Attorney General
JOHN OVERTON
Assistant District Attorney General
P. O. Box 484
Savannah, TN 38372-0484
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
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.
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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. filed January 23, 1998, at
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Jackson). We sincerely doubt that it was the intention of any of the parties that the
defendant waive his right to appeal the yet to be determined sentence by the trial
court. It is suggested that the guilty plea form be modified in cases where there is
a guilty plea but no agreement as to sentence.
Under these facts and circumstances, we do not find that the defendant
waived his right to appeal the sentence imposed by the trial court. The sentencing
issue will be addressed on it merits.
IV
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in the defendant’s own behalf about
sentencing.
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d
785 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should
start at the minimum sentence, enhance the minimum sentence within the range for
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enhancement factors and then reduce the sentence within the range for the
mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the
discretion of the trial court as long as its findings are supported by the record. State
v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v. Santiago, 914 S.W.2d 116 (Tenn.
Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission
Comments. Nevertheless, should there be no mitigating factors, but enhancement
factors are present, a trial court may set the sentence above the minimum within the
range. Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635(Tenn. Crim. App. 1994).
V
The defendant had numerous prior convictions; therefore, the court properly
applied this enhancement factor. Tenn. Code Ann. § 40-35-114(1). Although the
use of a deadly weapon is an element of the offense of aggravated assault under
Tenn. Code Ann. §39-13-102(a)(1)(B) and (2)(B), aggravated assault can also be
committed by one who assaults another and causes serious bodily injury. See
Tenn. Code Ann. § 39-13-102(a)(1)(A) and (2)(A). Therefore, the use of a deadly
weapon is not an essential element of an aggravated assault causing serious bodily
injury and can be an enhancement factor. Accordingly, the use of a deadly weapon
was properly considered by the trial court as an enhancement factor. Tenn. Code
Ann. § 40-35-114(9).
As to the mitigating factors, the trial court specifically found that the
defendant did not act under strong provocation. The trial court further rejected
defendant’s contention that it was unlikely that he had a sustained intent to violate
the law. We see no reason to disturb these findings.
Having concluded that the trial court properly found two (2) enhancement
factors and no mitigating factors, the trial court was authorized to sentence the
defendant above the minimum. The judgment of the trial court is AFFIRMED.
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________________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
PAUL G. SUMMERS, JUDGE
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