          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.




                                           2
             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

                                         3
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

                                          4
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.


                                           5
                                 ________________________________
                                 JOE G. RILEY, JUDGE




CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE



______________________________
PAUL G. SUMMERS, JUDGE




                                 6
