# FILED
October 10, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON JUNE 1996 SES SION

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9507-CC-00194

) ) Hardin County v. ) ) Honorable C. Creed McG inley, Judge ) SHONDA KAY McGILL, ) (Pretrial Diver sion) ) Appellant. )

DISSENTING OPINION
I respectfully dissent from the majority opinion. I believe that the record reflects a failure by the District Attorney to give due consideration to all of the factors relevant to pretrial diversion so as to cons titute an abuse of discretion. I believe that the case should be remanded to the tr ial court for further proceedi ngs.
Our supreme court has prov ided particular factors that prosecutors are to consider in exercis ing their discretion to grant or deny pretr

ial diversion. See State v. Hammersley , 650 S.W.2d 352, 35 5 (Tenn. 1983). Given the judicial review process provided by law, this has led to a recurring theme in reported cases about prosecutors not showing on the recor d that they have duly considered all of the factors. See , e.g. , State v. Markham , 755 S.W.2d 850, 85 3 (Tenn. Crim. App. 1988). Our supreme court noted the continuing problem and stated that prosecutors must ar ticulate the reasons for denial and reflect on the recor d their consideration of all of the relevant factors. State v. Herron , 767 S.W.2d 151, 155-56 (Tenn. 1989). In fact, it state d that trial courts must follow a similar pat h in their review of pretrial diversio n cases. Id. at 156.2 Thus, if a prosecutor does not show that he or she followed the procedures and standards req uired by law for use a nd consideration in the decis ionmaking process for pretri al diversion, then the ul timate decision should not be ent itled to deference by a reviewing court. With the burden being upon the prosecutor to insure that the record sh ows his or he r due cons ideratio n of all o f the requ ired fac tors, we should not presume that due consider ation occurred when w e are faced with a deficient record. In other word s, I do not believe that a r eviewing court can say, as a matter of law, that the prosecutor exercised sound discr etion in making a decisio n that did not result from consideration of all of the required factors.

Once the trial court deter mines that the prosecutor failed to consider all of the relevant factors, then it must determine the relative merits of the defendant’s claim or, in the appropriate case, it may remand the matter to the prosecutor for further consideration under the appropr iate guidelines. See , e.g. , State v. Winsett , 882 S.W.2d 806 (Ten n. Crim. A pp. 1993 ). In the p resent ca se, thou gh, the tri al court ga ve deference to the prosecutor’s dec ision even though that decision was obtained w ithout following the requi red decision-making pr ocess. Such a deference, also g iven in the majority opinion, w

as and is unwarranted.

Relative to the offenses, the rec ord reflects that the defendant drov e her then boyfriend to locations w here he and another man burglar ized homes -- two i n one night and another fifteen days l ater. The record indicates that no one was home at the time of these burglaries.

One victim wrote tha

t her son’s cash savi ngs (amount undisclosed) an d her jewelry (not

expensive, but of irr

eplaceable sentimental valu e) were taken and that she remains uneasy at nig ht. She would like thi ngs returned and restitut ion to be paid, but no amount is mentioned. She also stated th at she thought the defendant should3

receive probation and community service obligations that would profit the defen dant in personal and community respons ibility.

Another victim wro

te that her property los s was approximately

two to three thousand dollars, including guns, jewelry and family photographs. She now has a house dog and sleeps wit h a loaded gun nearby. She r equested restitution for w hat her insurance has not covered.Also, she did not think that the defendant was remorseful and stated that the defendant sho uld be made “accountable” for her actions. There is no information in the record regarding the view s of the victims in the thi rd case.
Regarding the defendant, the record reflects that she was ninete en years old at the time of the burglari es and had no prior criminal record of any type. She received a GED, is single, and has resided with her mother since her return to Hardin County, a matter of weeks before the offenses occurred. She had a g ood, albeit short, work history, i nterrupted by her moves to Memphis, then Nashvil le, and then back to Hardin County.

The defendant acknowledged occasi onal use of alcoholic bever ages and the use of marijuana or cocaine a total of f ive times, the last being the month of the last burglary and her arr

est. There is no indication of any medical or mental health problems. The petition for pretr ial diversion, sig ned under oath by the defendant, includes the f ollowing:

3. She further avers that she ha s a proper attitude

and behavior since her arrest; that she has no continuing criminal involvement, that she has a proper home envi ronment and that she has no current drug or alcohol use problem; tha t she is emotionally stable, that sheattends the Baptist church, t hat her general reputation i s good and has exhibited family responsibility

and has a proper respect and attitude for the law enforcement for the State of Tennessee. 4. She further

avers that she wil l not become a repeat offenderand will state and show to the Cour t that the incidents forwhich

she was

indict ed are an

isolat ed inci dent in h er life4 and that she has learned her lesson and will not again v

iolate the laws of the State of Tennessee. 5. She avers that she has and can co ntinue to demonstrate that she should be eligibl e for th e preferred treatmentof pre-trial divers ion and that society w ill be be t ter served if she is placed on diversion. The foregoing rendition of the defendant’ s background, social hi story, and expressed attitudes is detailed in thi s opinion in light of the fact that our supreme court has stated that the focus of a diversion con sideration should be on the defendant’ s amenability to correction, with the ultimate issue being to w hat extent diversion serves the ends of justice and the best interes t of both the public and the defendant in thi s particular case. Hammersley , 650 S.W.2d at 355.

Obviously, as the maj ority opinion notes, the nature and circumstances of the criminal conduct or the particular need for deterrence ma y be of “such overwhelming significance that they outweigh all other factors.” Markham , 755 S.W.2d at 853. However, I do not believe that this cas e falls into either such category whereby the defendant is excluded from div ersion regardless of her background and rehabilitation potential. Pretrial diversi on has been approved in cases involving gr eater financial losses deriv

ed from intentionally planned c riminal conduct for a great er period of time than reflected in the present c ase. See Herron , 767 S.W .2d at 15 2, 155 (two larcenies by trick totaling eleven thousand dollars, committed eight days apart); Markham , 755 S.W.2d at 851, 853 (two-count indictment regarding conspira

cy to defraud the state, six thousand four hundred dollars actually paid over several months).

Thus, I would remand the case t o the trial court for it to

determine whether it is appropriate to remand the matter to the prosecutor for r econsideration, with both parties having the opportunity to present a more detailed record. If the trial court determines that such remand would be inappropriate und er the circumstances, then it5

should decide the issue of diversion upon full and due consideration of all of the factors relevant to pretrial diversion.

___________________________ Joseph M. Tipto n, Judge