FILED

March 5, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9702-CC-00056 

Appellee, * RHEA COUNTY

VS. * Hon. J. Curtis Smith, Judge

MARTIN CONLEY, * (Pretrial Diversion)

Appellant. *

For Appellant: For Appellee:

J. Arnold Fitzgerald John Knox Walkup

Attorney at Law Attorney General and Reporter

P.O. Box 227 

1470 Market Street Michael J. Fahey, II

Dayton, TN 37321 Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

Cordell Hull Building, Second Floor

Nashville, TN 37243-0490

James W. Pope, III

Asst. District Attorney General

Third Floor, First American Bank Building

Dayton, TN 37321

OPINION FILED:__________________________

AFFIRMED 

GARY R. WADE, JUDGE
2

OPINION

The defendant, Martin Conley, was indicted for possession of over ten

pounds of marijuana with intent to deliver or sell. See Tenn. Code Ann. § 39-17-

417. After being denied his request for pretrial diversion by the state, the defendant

filed a petition for certiorari in the trial court which was also denied. See Tenn. Code

Ann. § 40-15-105(b)(3). In this interlocutory appeal, the defendant insists that the

district attorney general abused his discretion by the denial of pretrial diversion and

that the trial court erred by refusing to grant placement into the program. Tenn. R.

App. P. 9. 

We affirm the judgment.

The petition for certiorari, filed October 25, 1996, is attached as a part

of the defendant's brief but is not a part of the record. See Price v. Mercury Supply

Co., Inc., 682 S.W.2d 924, 929, n.5 (Tenn. App. 1984); Davis v. State, 673 S.W.2d 

171, 173 (Tenn. Crim. App. 1984). The defendant claims that his social history, his

lack of criminal record, and his amenability to rehabilitation support placement on

pretrial diversion. A letter by the district attorney general denying the application for

probation was not included in the record; however, the memorandum opinion

entered by the trial court provides the reasons for denial:

More than 19 pounds of marijuana was found in the

defendant's storage unit. Defendant's explanation for the

presence of the marijuana is that he rented the unit to

someone else and that the marijuana belonged to that

individual. The application for pre-trial diversion does not

reveal the description or name of the alleged renter. 

Apparently the defendant maintained the key for the

storage unit in his possession....

[T]he defendant does have a criminal history during the

1980[']s which he failed to divulge in his application. He

was convicted of felonious possession of a controlled

substance in 1983. The Attorney General rightly points

to the fact [that] granting pre-trial diversion ... with such a
3

large amount of drugs involved would depreciate the

seriousness of the offense.

In summary, defendant's application reflects deception. 

He failed to list his complete criminal history and

particularly, a prior conviction for felonious possession of

a controlled substance. His application failed to reveal a

description or a name of an individual he felt was

trustworthy enough to be allowed use of his storage unit. 

Finally, the charge involves a large amount of marijuana

and pre-trial diversion would depreciate the seriousness

of this offense. 

Initially, it is the duty of the appellant to file an adequate record in order

to convey a fair, accurate, and complete account of what transpired with respect to

the issues on appeal. State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App. 1985);

State v. Jones, 623 S.W.2d 129 (Tenn. Crim. App. 1981). Without a fully developed

transcript, this court must presume that the evidence supports the trial court's

actions and rulings. State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983);

State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983). Here, because

there is less than a complete record, this court is handicapped in its consideration of

the primary issue. 

We are guided by well-established principles. Whether to grant or

deny an application for pretrial diversion is within the discretion of the district

attorney general. Tenn. Code Ann. § 40-15-105; State v. Hammersley, 650 S.W.2d

352, 353 (Tenn. 1983); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App.

1993). On a petition for certiorari after a refusal by the district attorney to grant

pretrial diversion, the hearing conducted by the trial judge is limited to two issues: 

(1) whether the accused is eligible for diversion; and

(2) whether the attorney general abused his discretion in

refusing to divert the accused.

State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980). 
4

In making the initial determination, the district attorney must consider

(1) the circumstances of the offense; (2) the defendant's criminal record; (3) the

defendant's social history; (4) the defendant's physical and mental condition; (5) the

deterrent effect of punishment upon other criminal activity; (6) the defendant's

amenability to correction; (7) the likelihood that pretrial diversion will "serve the ends

of justice" and the best interests of the defendant and the public; and (8) the

defendant's "attitude, behavior since arrest, prior record, home environment, current

drug usage, emotional stability, past employment, general reputation, marital

stability, family responsibility, and attitude of law enforcement." State v.

Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v. Markham, 755

S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The nature and circumstances of

the alleged offenses are not only appropriate factors to be considered upon

application for diversion but may alone provide a sufficient basis for denial. Carr,

861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).

The circumstances of the case and a generalized need for deterrence,

however, "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 (emphasis and alteration in original) (quoting Markham, 755 S.W.2d

at 853). Where there are no "such exceptional circumstances, 'the district attorney

general must consider evidence which tends to show that the applicant is amenable

to correction [by diversion] and is not likely to commit further criminal acts.'" Id.

(alteration in original); see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim.

App. 1993).

In State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), our supreme

court expounded upon the duties of the district attorney general in making the initial
5

assessment: 

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 that a defendant in a particular case does not

meet the test. If the attorney general bases his decision

on less than the full complement of factors enumerated

in this opinion he must, for the record, state why he

considers that those he relies on outweigh the others

submitted for his consideration. 

"The decision of a district attorney general granting or denying pretrial diversion to

an accused is said to be 'presumptively correct'; and the decision should not be set

aside unless there has been a 'patent or gross abuse of prosecutorial discretion.'" 

State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994) (quoting Pace v.

State, 566 S.W.2d 861, 870 (Tenn. 1978)). See State v. Pinkham, 955 S.W.2d 956,

957 (Tenn. 1997) (holding the district attorney must state "the factual basis and

rationale for denying diversion"). Clearly, any appellant should always include the

letter of denial in the record. 

From the information available, it is apparent that the denial of this

application for diversion must be upheld. See State v. Houston, 900 S.W.2d 712

(Tenn. Crim. App. 1995). Although the district attorney general's letter was not

included in the record, the trial court made reference to three sound reasons for

denying the application. A prior criminal history and lack of candor both suggest a

lack of amenability to rehabilitation. The significant amount of marijuana found in

the storage unit of the defendant presents a particularly aggravated circumstance.

Accordingly, the judgment is affirmed.

________________________________

Gary R. Wade, Judge 
6

CONCUR:

_____________________________

William M. Barker, Judge

_____________________________

Curwood Witt, Judge