IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 27, 2011 

STATE OF TENNESSEE v. CHARLOTTE McCARTER

Extraordinary Appeal from the Circuit Court for Sevier County

No. 14694-II, 15281-II Richard R. Vance, Judge

No. E2010-02127-CCA-R10-CD - Filed November 18, 2011

In this extraordinary appeal, the Defendant-Appellant, Charlotte McCarter, appealsthe Sevier

County Circuit Court’s order refusing to grant an interlocutory appeal regarding the denial

of pretrial diversion. On appeal, McCarter argues that the prosecutor abused her discretion

in denying her application for pretrial diversion by: (1) failing to properly consider her

amenability to correction; (2) making “rote statements” that the evidence weighed in favor

of denying pretrial diversion instead of properly weighing the relevant factors; (3) relying on

the circumstances of the offense and the need for deterrence, where these factors were not

of such “overwhelming significance” to justify the denial; and (4) failing to have “substantial

evidence” to support her decision to deny pretrial diversion. Upon review, we affirm the

judgment of the trial court.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed

CAMILLER. MCMULLEN,J., delivered the opinion of the court, in which ALAN E. GLENN and

ROBERT W. WEDEMEYER, JJ., joined.

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the DefendantAppellant, Charlotte McCarter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; James B. Dunn, District Attorney General, and Ashley D. Musselman, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

Prosecutor’s Denial of Pretrial Diversion. McCarter was charged by presentment

in case number 14694-II with the sale and delivery of a Schedule II controlled substance on

March 3, 2009. She was also charged by presentment in case number 14695-II with the sale
and delivery of a Schedule III substance on March 6, 2009. McCarter filed an application

for pretrial diversion for both of these case numbers on April 9, 2010, which was denied by

the prosecutor. On May 17, 2010, the grand jury issued a superseding presentment in case

number 15281-II, which charged McCarter with the sale and delivery of a Schedule II

controlled substance on March 6, 2009.

On June 7, 2010, the trial court entered an order dismissing the indictments in case

numbers 14694-II and 14695-II based on the superseding presentment in case number 15281-

II. On June 22, 2010, McCarter then filed a separate application for pretrial diversion in case

number 15281-II. On June 28, 2010, the trial court entered a corrected order showing that

it was only dismissing case number 14695-II and that case number 14694-II was still

pending.

On June 28, 2010, the assistant district attorney general denied McCarter’s application

in case number 15281-II. In her letter denying pretrial diversion, the prosecutor summarized

the facts in case number 15281-II:

On March 6, 2009, Detective Tommie Morlock and Detective Mark

Turner . . . met with a Confidential Informant in Sevierville, Tennessee in

reference to purchasing an amount of Schedule II Controlled Substance from

[McCarter]. . . .

The Confidential Informant . . . met with [McCarter] at her residence.

The Confidential Informant gave [McCarter] $60.00 in confidential funds in

exchange for four 15 mg Roxicet tablets. [McCarter] then gave the

Confidential Informant the tablets.

During this transaction [McCarter] also offered to sell the Confidential

Informant some additional Hydrocodone tablets in the future. . . . Specifically,

[McCarter] stated that her doctor ha[d] “upped her dosage.” She explained

that she [was] now prescribed 8 pills a day. She stated that she ha[d] 300 pills,

which [was] “plenty.” [McCarter] warn[ed], however, that if someone

need[ed] the pills she [did] not want them to come “four or five times a day”

because that would “be suspicious.” . . .

The 15 mg Roxicet tablets were also sent to the TBI Crime Lab for

analysis, and were found to be Oxycodone, a Schedule II Controlled

Substance. . . .

-2-
The prosecutor’s denial letter also included a summary of the facts in case number

14694-II since those facts were “relevant due to the similar nature of the transaction, and

because they show[ed] a continuing course of conduct.” The assistant district attorney

general summarized the facts in case number 14694-II:

On March 3, 2009, Detective Tommie Morelock and Detective Mark

Turner of the Sevier County Sheriff’s Office Street Crimes Unit met with a

Confidential Informant in Sevierville, Tennessee, in reference to purchasing

an amount of Schedule II Controlled Substance from [McCarter]. . . .

The Confidential Informant met with [McCarter] at her residence. The

Confidential Informant gave [McCarter] $70.00 in exchange for four 15 mg

Roxicet tablets. [McCarter] then gave the Confidential Informant the tablets,

as well as $10.00 in change. . . .

The 15 mg Roxicet tablets were sent to the TBI Crime Lab for analysis,

and were found to be Oxycodone, a Schedule II Controlled Substance. . . .

The prosecutor noted that the facts provided in case number 14694-II were “identical” to

those facts listed in McCarter’s previous application for pretrial diversion.

The assistant district attorney general also provided information regarding McCarter’s

background, which included a discussion of her sixth-grade education, her family, and her

work history, which showed that she had been employed from 1988 to 2002, when she

became disabled. The prosecutor noted that McCarter suffered from “crippling arthritis,

asthma, and [was] a breast cancer survivor” and acknowledged that McCarter had no prior

criminal offenses. She also noted that McCarter had never been counseled for drug or

alcohol abuse. The assistant district attorney general recited McCarter’s version of the facts

in this case and discussed the twenty-four letters of recommendation forwarded by

McCarter’s family and friends.

Regarding the circumstances of the offense, the prosecutor emphasized that McCarter

sold Schedule II Roxicet tablets to the confidential informant on two separate dates and

offered to sell the informant hydrocodone tablets in the future. Pursuant to an audio

recording of the drug transaction on March 6, 2009, McCarter told the confidential

1

informant that her doctor had increased her dosage and that she now had 300 pills, which was

“plenty.” McCarter also told the informant that she did not want buyers of the pills to

The audio recordings of McCarter’s drug transactions on March 3, 2009, and March 6, 2009, were

1

not included in the record on appeal. 

-3-
approach her “four or five times a day” because that would “be suspicious.” The assistant

district attorney opined that McCarter’s statements showed an intent to sell additional drugs

in the future and to avoid arrest by police.

The prosecutor stated that the evidence from the audio recording of the drug

transaction did not support McCarter’s version of the facts of the offense, namely that she

was supplementing the pain needs of the confidential informant’s mother. The prosecutor

gave weight to the fact that McCarter had participated in “at least two drug transactions” and

gave “great weight” to McCarter’s statements that she had “plenty” of pills and that she

would sell drugs to other individuals in the future. The prosecutor found that the

circumstances of the offense favored a denial of pretrial diversion.

The assistant district attorney general said that she gave “credit” to McCarter for her

social history but did not find this factor to outweigh the other factors in this case.

Specifically, the prosecutor noted that McCarter had lived in Sevier County her entire life,

had attended school until the fifth grade, and after helping raise her family, had been

gainfully employed until she became disabled. The prosecutor stated that she had reviewed

the many letters of recommendation from friends and family who described McCarter as a

“nice, hard-working, honest, and family-oriented” person who attended church and never got

in trouble. She gave credit to McCarter for her good reputation in the community.

Regarding McCarter’s physical or mental condition, the prosecutor said that

McCarter’s medical records confirmed that she suffered from arthritis and was a breast

cancer survivor. Although the prosecutor gave McCarter “credit” for suffering from these

health conditions and battling cancer, she found that these physical or mental conditions did

not outweigh the other factors in this case. Moreover, the prosecutor noted that McCarter’s

health conditions made “it easier for [McCarter] to obtain prescription drugs, like the drugs

she sold in these cases.” The prosecutor said that McCarter’s medical conditions allowed her

access to the following drugs: Oxycodone, Tramadol, Furosemide, Megestrol, Clonazepam,

Alprazolam, Advair, and Fentanyl.

Regarding her criminal history, the assistant district attorney general acknowledged

that McCarter did not have a criminal history. However, she determined that this factor did

not outweigh the other factors in this case.

The prosecutor found that McCarter was not amenable to correction given thatshe had

sold drugs to the confidential informant on two different dates, had offered to sell the

confidential informant hydrocodone tablets in the future, had stated that her doctor had

“upped her dosage” to eight pills a day, and had said that she did not want people buying pills

from her “four or five times a day” because that would “be suspicious.” The assistant district

-4-
attorney general gave “great weight” to McCarter’s statements that she had “plenty” of pills

and that she was willing to sell pills in the future. Ultimately, she found that McCarter’s

actions and statements “reflect[ed] poorly on [her] amenability to correction.”

Regarding the need for deterrence, the prosecutor again gave “great weight” to

McCarter’s statements that she had “plenty” of pills and that she was willing to sell pills to

others in the future. She said that McCarter’s statements “not only show[ed] that [she was]

willing to participate in additional drug selling, but also indicate[d] that [she was] likely to

continue defrauding her doctors in order to obtain pills to sell.” She added, “Granting

pretrial diversion to [McCarter] would depreciate the seriousness of the offense[s] and would

depreciate the seriousness of the statements made by [her].” Moreover, the assistant district

attorney general claimed that a grant of pretrial diversion “would suggest that [McCarter’s]

behavior istolerable and [might] encourage [McCarter] or othersimilarly situated individuals

to continue with similar illegal behavior.”

The prosecutor found that granting pretrial diversion would not serve the ends of

justice and would depreciate the seriousness of the offense. She maintained that encouraging

or allowing criminal offenses like the ones in this case was “clearly not in the interest of the

public or the Defendant” and concluded that “the public interest and the ends of justice in

such a case strongly favor prosecution.”

In conclusion, the assistant district attorney general gave “credit” to McCarter for her

social history, lack of criminal history, and physical and mental condition but was “troubled

by” the circumstances of the case. Specifically,she was “concerned that the Defendant [was]

likely to continue defrauding her doctors in order to obtain pills to sell[] and [was] disturbed

that she [was] using her physical conditions to obtain prescription[s] by fraud – another

criminal offense.” The prosecutor also was “alarmed by the Defendant’s expressed

willingness to illegally sell pills in the future.” The prosecutor concluded that a denial of

pretrial diversion was proper because “the circumstances of the offense, as well as the

Defendant’s amenability to correction, the deterrent effect on other criminal activity, and the

ends of justice and interest of the public outweigh the factors in favor of suspending

prosecution.”

Hearing on Petition for Writ of Certiorari. On June 30, 2010, McCarter filed a

petition for writ of certiorari in case numbers 14694-II and 15281-II, claiming that the

prosecutor abused her discretion in denying her request for pretrial diversion. On August 3,

2010, the trial court conducted a hearing, wherein defense counsel reminded the court that

McCarter was charged with selling a mere eight pills. Moreover, he asserted that the

prosecutor “hinged [her] denialseemingly upon one statement that was made in this recorded

transaction by [McCarter], that being that her doctor has elevated the prescription amount

-5-
that she is receiving and that she has the ability to sell more pills in the future.” Defense

counsel noted that the prosecutor’s denial did not indicate that the prosecutor discussed the

matter of McCarter’s pretrial diversion with law enforcement. Specifically, he asserted that

Tommie Morelock, the detective involved in this case, did “not oppose [pretrial] diversion

in this matter for this lady considering all the circumstances that he now knows with regard

to her health and her condition.” He stressed that McCarter had no criminal history, had

2

devoted her life to caring for and supporting her family, was a lifelong resident of Sevier

County, and had many health issues. He also argued that the prosecutor must consider all

factors, including those that are favorable to the defendant. See State v. Bell, 69 S.W.3d 171,

178 (Tenn. 2002). Finally, defense counsel contended that the prosecutor failed to weigh

each factor and only provided abstract statements that the unfavorable factors outweighed

the favorable factors for the purposes of pretrial diversion. In response, the prosecutor

asserted that she considered each request for pretrial diversion on a case-by-case basis. She

added that she reviewed all of the records, letters of recommendation, and medical records

that had been submitted for McCarter and considered all of the relevant factors before

denying pretrial diversion in this case.

At the conclusion of the hearing, the trial court determined, after considering

arguments of counsel and reviewing the record as a whole, that the prosecutor did not abuse

her discretion in denying McCarter’s application for pretrial diversion. Defense counsel then

made an oral motion for permission to file an interlocutory appeal pursuant to Rule 9 of the

Tennessee Rules of Appellate Procedure, which the trial court denied. Then, on September

16, 2010, the trial court entered an order denying McCarter’s petition for writ of certiorari

in case numbers 14694-II and 15281-II. That same day, the trial court entered a separate

order denying McCarter’srequest for permission to file an interlocutory appeal in both cases.

On October 13, 2010, McCarter filed an application for an extraordinary appeal

pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure in case number 15281-II,

and the State responded to this application. On November 3, 2010, this court granted

McCarter’s request for an extraordinary appeal in case number 15281-II. On November 10,

2010, McCarter requested permission to amend her appeal to include case number 14694-II.

On December 6, 2010, this court entered an order allowing McCarter’s application for an

extraordinary appeal to include case numbers 14694-II and 15281-II.

ANALYSIS

Detective Tommie Morelock did not testify at the August 3, 2010 hearing regarding the attitude of 2

law enforcement, and there is no information in the record corroborating defense counsel’s assertion that

Detective Morelock supported the grant of pretrial diversion in McCarter’s case. 

-6-
Tennessee Code Annotated section 40-15-105(a)(1)(A) allows a district attorney

general to suspend prosecution of an qualified defendant for a period of up to two years. A

qualified defendant is one who has not been previously granted pretrial or judicial diversion,

who has no prior misdemeanor conviction requiring the service of a sentence of confinement,

and who has no prior felony conviction within a five-year period after completing the

sentence or probationary period for the prior conviction. T.C.A. § 40-15-105(a)(1)(B)(i)(a)-

(b) (2006). In addition, the offense for which a defendant seeks pretrial diversion cannot be

a Class A or Class B felony, certain Class C felonies, a sexual offense, driving under the

influence, or vehicular assault. Id. § 40-15-105(a)(1)(B)(i)(c) (2006). In order to be granted

diversion, a defendant must agree to complete certain conditions for the duration of the

diversion period. Id. § 40-15-105(a)(2) (2006). Upon completion of pretrial diversion, the

charges against the defendant shall be dismissed with prejudice. Id. § 40-15-105(e) (2006).

Although statutorily eligible, a qualified defendant is not presumed to be entitled to

pretrial diversion. State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002) (citing State v. Curry,

988 S.W.2d 153, 157 (Tenn. 1999)). The decision to grant or deny pretrial diversion lies

within the discretion of the district attorney general. T.C.A. § 40-15-105(b)(3); State v.

Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997). A defendant has the burden of establishing

his or her suitability for pretrial diversion. Bell, 69 S .W.3d at 179.

The following relevant factors must be considered by the prosecutor when

determining whether to grant or deny pretrial diversion: (1) the defendant’s amenability to

correction; (2) the defendant’s propensity to re-offend; (3) the circumstances of the offense;

(4) the defendant’s criminal record; (5) the defendant’s social history; (6) where appropriate,

the defendant’s physical and mental condition; and (7) whether pretrial diversion will serve

the best interests of the public and the defendant. Pinkham, 955 S.W.2d at 959-60 (quoting

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). Additionally, the following

factors and circumstances may also be considered to determine if pretrial diversion is

warranted: the deterrent effect of punishment upon other criminal activity, the defendant’s

attitude and behavior since arrest, home environment, current drug use, emotional stability,

employment history, general reputation, marital stability, and family responsibility as well

as the attitude of law enforcement. State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)

(citations omitted).

The prosecutor “has a duty to exercise his or her discretion by focusing on a

defendant’s amenability for correction and by considering all of the relevant factors,

including evidence that is favorable to a defendant.” Bell, 69 S.W.3d at 178 (citing Pinkham,

955 S.W.2d at 959; Hammersley, 650 S.W.2d at 353). Moreover, a prosecutor should

consider “[a]ny factors which tend to accurately reflect whether a particular defendant will

or will not become a repeat offender[.]” Hammersley, 650 S.W.2d at 355. Factors related

-7-
to the need for deterrence and the circumstances of the offense “cannot be given controlling

weight unless they are ‘of such overwhelming significance that they [necessarily] outweigh

all other factors.’” Washington, 866 S.W.2d at 951 (quoting State v. Markham, 755 S.W.2d

850, 853 (Tenn. Crim. App. 1988)). “If the district attorney general denies pretrial diversion,

that denial must be written and must include both an enumeration of the evidence that was

considered and a discussion of the factors considered and weight accorded each.” Pinkham,

955 S.W.2d at 960 (citing State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993)).

The prosecutor must fully articulate his or her evaluation of each factor:

If the application is denied, the factors upon which the denial is based

must be clearly articulable and stated in the record in order that meaningful

appellate review may be had. This requirement entails more than an abstract

statement in the record that the district attorney general has considered these

factors. He must articulate why he believes a defendant in a particular case

does not meet the test.

State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989) (internal citation omitted), overruled in

part on other grounds by Yancey, 69 S.W.3d at 559. Finally, the district attorney general

must identify any disputed facts and must provide a reason for the denial of pretrial diversion.

Winsett, 882 S.W.2d at 810.

If the application for pretrial diversion is denied, the defendant may seek a writ of

certiorari in the trial court. T.C.A. § 40-15-105(b)(3). The prosecutor’s decision to deny

pretrial diversion is presumptively correct and is subject to review by a trial court for an

abuse of discretion. Curry, 988 S.W.2d at 158. “[T]he trial court must only determine

whether the district attorney general has abused his or her discretion by failing to consider

and weigh all of the relevant factors or by reaching a decision that is not supported by

substantial evidence.” Bell, 69 S.W.3d at 179 (citing Curry, 988 S.W.2d at 158;

Hammersley, 650 S.W.2d at 355).

The Tennessee Supreme Court has stated that “the district attorney general’s failure

to consider all of the relevant factors, including evidence favorable to the defendant, cannot

be cured by the trial court’s review.” Id. “Because the trial court does not have appropriate

findings made by the district attorney general upon which to review, allowing it to ‘fill in the

gaps’ would extend de novo review over the district attorney general’s decision and would

allow the trial court to substitute its view over the pretrial diversion decision-making

process.” Id. Consequently, “[i]f the trial court determines that the district attorney general

has failed to consider and weigh all relevant factors, the trial court must reverse the district

attorney general’s decision and remand the matter for further consideration and weighing of

all of the factors relevant to the pretrial diversion determination.” State v. McKim, 215

-8-
S.W.3d 781, 788 (Tenn. 2007) (citing Bell, 69 S.W.3d at 180). However, “[i]f the trial court

determines that the district attorney general has considered all relevant factors, and no

irrelevant ones, and has nonetheless committed an abuse of discretion in denying diversion,

the trial court may order the prosecutor to place the defendant on pretrial diversion.” Id. n.3

(citing T.C.A. § 40–15–105(b)(3) (Supp. 2004)).

Upon review of the writ of certiorari, the trial court must: (1) limit its consideration

to the evidence which was before the prosecutor and the reasons given by the prosecutor in

denying diversion; (2) conduct a hearing only to resolve any factual disputes raised by the

prosecutor or the defendant concerning the petition but not to hear additional evidence; (3)

adhere to the same case-by-case balancing procedure that is imposed upon the prosecutor;

and (4) state its findings in writing. State v. Oakes, 269 S.W.3d 574, 578 (Tenn. Crim. App.

2006) (internal citations omitted).

In the event that the trial court refuses to grant the defendant’s writ of certiorari, the

defendant may seek interlocutory review in this court. See Tenn. R. App. P. 9, 10; Tenn. R.

Crim. P. 38. On review, this court is “bound by the factual findings made by the trial court

unless the evidence preponderates against them.” Bell, 69 S.W.3d at 177. “However, if the

evidence of record is undisputed and calls for no finding of fact to resolve the issue, a trial

court’s determinations constitute conclusions of law to which an appellate court is not

bound.” State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (citations omitted).

Accordingly, in a case where the facts are undisputed, this court must determine whether the

prosecutor abused his or her discretion in denying the defendant’s application for pretrial

diversion. Id.

I. Prosecutor’s Failure to Focus on Amenability to Correction. McCarter argues

that the prosecutor primarily focused on the circumstances of the offense in denying pretrial

diversion and gave “only lip service to [her] amenability to correction.” Specifically, she

asserts that the prosecutor focused on her statements that she was “willing to sell more pills

in the future” but argues that these statements were made by her during the offense and are

not indicative of whether she would reoffend now that she has been arrested and criminally

charged. In addition, she contends that the prosecutor failed to consider her “attitude,

behavior since arrest, . . . home environment, current drug usage, current alcohol usage,

emotional stability, past employment, general reputation, marital stability, family

responsibility [or] attitude of law enforcement” in determining her amenability for correction.

See Markham, 755 S.W.3d at 853. Moreover, she asserts that the amenability to correction

section fails to mention any factors favoring her, including her admission that selling

-9-
prescription drugs “was a wrongful act that she will not repeat.” The State does not

3

specifically address any of these issues, except to argue generally that amenability to

correction was one of the factors considered by the prosecutor.

Here, regarding the amenability to correction, the prosecutor noted that McCarter not

only sold the drugs on the two dates in question but also offered to sell hydrocodone tablets

in the future. The assistant district attorney general said that McCarter made statements on

the recording that her doctor had “upped her dosage,” that she was now prescribed eight pills

a day, that she currently had 300 pills, which she considered “plenty[,]” and that if a person

needed the pills she did not want them coming to her “four or five times a day” because that

would “be suspicious.” The prosecutor found that “the clear implication of these statements

[was] that the Defendant [was] willing to sell more pills in the future, but [did] not want to

do anything that would attract the attention of the police.” In conclusion, she gave “great

weight” to McCarter’s statements regarding the pills and her willingness to sell pills in the

future and concluded that McCarter was not amenable to correction.

We conclude that the prosecutor fully considered McCarter’s amenability to

correction. Although McCarter may disagree with the assistant district attorney general’s

finding that her statements indicated a willingness to commit similar drug offenses in the

future, we conclude that the prosecutor did not abuse her discretion in finding that McCarter

was likely to reoffend. See Carr, 861 S.W.2d at 856. A review of the denial letter shows that

the assistant district attorney general did, in fact, consider factors relating to her home

environment, past employment, and general reputation. Moreover, recent Tennessee

Supreme Court cases indicate that the prosecutor is under no obligation to consider all of the

factors in Markham. See McKim, 215 S.W.3d at 786-87; Bell, 69 S.W.3d at 176. Finally,

while the prosecutor does not mention any factors that favor McCarter in the amenability to

correction section, she does mention several factors favorable to pretrial diversion in her

denial letter, including McCarter’s positive social history, lack of criminal history, and her

physical and mental conditions. Accordingly, we conclude that McCarter is not entitled to

relief on these issues.

II. Prosecutor’s Abstract Statements. McCarter contends that the assistant district

attorney general abused her discretion because her denial letter “is replete with ‘rote

statements’” that attempt to bypass actually weighing the relevant factors. See State v. Holly

A. Hatcher, No. M2008-02042-CCA-R10-CO, 2010 WL 457491, at *6 (Tenn. Crim. App.,

at Nashville, Feb. 10, 2010) (holding that “more than a ‘rote statement’ that the negative

factors outweigh the positive factors is required” and that the prosecutor “must assign a

weight to each factor, both favorable and unfavorable, weigh the factors against each other,

We do not see evidence of such an admission by McCarter in the record on review. 3

-10-
and reach a conclusion based on the relative weight of all factors”). In particular, she asserts

that the following statements by the prosecutor “exemplify the use of rote notations in lieu

of actual analysis” and “fail to show the true legal discernment required by our well-settled

law regarding pretrial diversion”:

(1) “The State gives credit to the Defendant for [social] attributes, but does

not find this factor to outweigh the other factors in this case.”

(2) “[T]he State does not find that [the Defendant’s] physical or mental

condition outweigh the other factors in this case.”

(3) “The State gives credit to the fact that the Defendant does not have a

criminal history, but does not find this factor to outweigh the other

factors in this case.”

Once again, the State does not specifically address this issue in its brief. However, after

reviewing the assistant district attorney general’s denial letter, we conclude that the

prosecutor did in fact “assign a weight to each factor, both favorable and unfavorable, weigh

the factors against each other, and reach a conclusion based on the relative weight of all

factors.” Id. McCarter is not entitled to relief on this issue.

III. Circumstances of the Offense and the Need for General Deterrence.

McCarter contends that the prosecutor abused her discretion by focusing on the

circumstances of the offense and the need for deterrence to justify the denial of pretrial

diversion where these factors did not possess such “overwhelming significance,” especially

given her positive social and criminal history. See McKim, 215 S.W.2d at 787. She also

asserts that the prosecutor failed to produce any evidence showing a factual basis for the need

for deterrence. See Pinkham, 955 S.W.2d at 960 (holding that a prosecutor is “required to

identify the factual basis and rationale for the decision to deny pretrial diversion” (citing

Winsett, 882 S.W.2d at 810; Hammersley, 650 S.W.2d at 355)). Finally, McCarter argues

that the prosecutor’s unsupported statement regarding the need for deterrence constitutes an

abuse of discretion, given the type of offenses at issue on this case. See State v. Heather

Richardson, No. M2010-01360-CCA-R3-CD, 2011 WL 303270, at *5-6 (Tenn. Crim. App.,

at Nashville, Jan. 25, 2011) (concluding that a single mother’s conduct of selling drugs twice

in a single day was not “so prolonged or egregious [as] to implicate the need for deterrence

or necessity of protecting the public from her” given the strong factors favoring pretrial

diversion), perm. to appeal granted (Tenn. Aug. 24, 2011).

Initially, we note that “the circumstances of the offense and the need for deterrence

may alone justify a denial of diversion, but only if all of the relevant factors have been

-11-
considered as well.” Curry, 988 S.W.2d at 158 (citing Washington, 866 S.W.2d at 951).

Here, the prosecutor specifically determined that the circumstances of the offense, the need

for deterrence, McCarter’s poor amenability to correction, and the ends of justice and the

interests of the public outweighed McCarter’s positive social history, lack of criminal history,

and her physical and mental conditions. Given that the prosecutor considered and weighed

all relevant factors in this case, we conclude that the denial of pretrial diversion was proper.

McCarter also contends that the prosecutor failed to produce any evidence showing

a factual basis for the need for deterrence. However, according to Pinkham, “the district

attorney general is simply required to identify the factual basis and rationale for the decision

to deny pretrial diversion.” Pinkham, 955 S.W.2d 960 (citing Winsett, 882 S.W.2d at 810;

Hammersley, 650 S.W.2d at 355). Accordingly, the prosecutor is under no obligation to

identify the factual basis for the need for deterrence, and McCarter is not entitled to relief on

this issue.

Finally, McCarter argues that the prosecutor abused her discretion in giving an

unsupported statement regarding the need for deterrence, especially given the type and

number of offenses at issue in this case. McCarter cites Heather Richardson, 2011 WL

303270, at *6, for the proposition that her conduct in this case was not so offensive that it

triggered the need for deterrence or the need to protect society from her. However, in

Heather Richardson, the prosecutor, under the mistaken belief that the defendant engaged in

multiple drug transactions over a period of two months, relied on the need for deterrence and

the interests of society in justifying the denial of pretrial diversion. Id. at *5. Upon

interlocutory review, this court concluded that the prosecutor failed to make findings on most

of the factors, failed to weigh the factors, and failed to state why the unfavorable factors

outweighed the favorable factors. Id. Moreover, the court recognized that although the

prosecutor acknowledged that the defendant had no criminal record and might be amenable

to correction, he neither discussed the weight given to this factor nor explained how this

factor was outweighed by the negative factors. Id. Ultimately, the court reversed the order

affirming the prosecutor’s denial and remanded the case to the trial court with instructions

to order the prosecutor to approve the defendant’s application for pretrial diversion. Id. at

*6. It is evident that the prosecutor’s problematic findings in Heather Richardson vary

dramatically from the prosecutor’s findings in the instant case. Because the prosecutor

considered and weighed all relevant factors in McCarter’s case, we conclude that the denial

of pretrial diversion was proper.

IV. Absence of “Substantial Evidence” to Support Denial. McCarter argues that

the prosecutor based her denial on facts not “supported by substantial evidence.” See

McKim, 215 S.W.3d at 788 (“‘[T]he trial court should examine each relevant factor in the

pretrial diversion process to determine whether the district attorney general has considered

-12-
that factor and whether the district attorney general’s finding with respect to that factor is

supported by substantial evidence.’” (quoting Yancey, 69 S.W.3d at 559)). Specifically,

McCarter takes issue with the prosecutor’s finding that she would continue to defraud her

physicians in order to illegally sell these drugs. She asserts that there was no “substantial

evidence” showing that she was defrauding her doctors and that her medical records show

“the legitimacy of [her] pain medication.” She also takes issue with the prosecutor’s finding

that she was not amenable to correction because of her statement that she had “plenty” of

pills since there was no other evidence that she was likely to reoffend. The State again does

not address these issues on appeal.

McCarter argues that there was no “substantial evidence” that she was defrauding her

doctors. She also contends that her prescriptions were legitimate. After reviewing the

record, we conclude that it is unlikely that McCarter was completely honest with her

prescribing physicians. If she had been, she would have needed all of the medication to

alleviate her own pain and would not have possessed a large reserve of pain medication that

she was willing to sell to others. Upon review, we conclude that the prosecutor’s evaluation

of McCarter’s conduct regarding the sale of drugs prescribed to her was supported by

substantial evidence.

Other than the prosecutor’s finding that she was not amenable to correction because

she had “plenty” of pills, McCarter contends that there was no other evidence that she was

likely to reoffend. The prosecutor’s denial shows that McCarter was not amenable to

correction because she sold drugs to the confidential informant on two different dates,

offered to sell the confidential informant hydrocodone tablets in the future, stated that her

doctor had “upped her dosage” to eight pills a day, and said that she did not want people

buying pills from her “four or five times a day” because that would “be suspicious.” The

prosecutor concluded that McCarter’s statements at the time of the offenses indicated that

she would reoffend. Although McCarter may not agree with the prosecutor’s finding, we

cannot conclude that the prosecutor’s finding is not supported by substantial evidence.

Accordingly, McCarter is not entitled to relief on this issue.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

______________________________

CAMILLE R. McMULLEN, JUDGE

-13-