# FILED

March 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9702-CC-00056 Appellee, * RHEA COUN TY VS. * Hon. J. Curtis Smit h, Judge MARTIN CONLEY, * (Pretrial Diver sion) Appellant. *

For Appellant : For Appellee : J. Arnold Fitzgerald John Knox Walkup Attorney at Law Attorney General and Repor ter P.O. Box 227 1470 Market Street Michael J. Fahey, II Dayton, TN 37321 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0490 James W. Pope, III Asst. District Attor

ney General Third Floor, First Amer ican Bank Building Dayton, TN 37321

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Martin Conley, w as indicted for possession of ov er ten pounds of marijuana with intent to deliver or sell

. See Tenn. Code Ann. § 39-17- 417. After being denied his r equest for pretrial div

ersion by the state, the defendant filed a petition for certiorar i in the trial court w

hich was also denied. See Tenn. Code Ann. § 40-15-105(b)(3). In this interlocutory appeal, the defendant insists that the district attorney g eneral abused his discreti on 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 def endant claims that his social history, his lack of criminal record, and his amenability to reh abilitation support placement on pretrial diversio n. A letter by the dist rict attorney gener al denying the application for probation was not include d in the record; howev

er, the memorandum opinion entered by the trial court provides the reasons for denial:

More than 19 pounds of marijuana w as 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 bel onged to that individual. The applicat ion for pre-trial div ersion does not reveal the description

or name of the alleged renter. Apparently the defendant maintained the key for the storage unit in his poss ession.... [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 p

oints to the fact [that] granting p re-trial diversi on ... with such a3 large amount of drugs inv olved would depreciat

e the seriousness of the offense. In summary, defendant's applicati on reflects deception. He failed to list his compl ete criminal history and particularly, a pri or conviction for felonious possession of a controlled substance. His application failed to reveal a description or a name of an indiv idual he felt was trustworthy enough

to be allowed use of his st orage unit. Finally, the charg e involves a larg e 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, accur

ate, and complete account of what tr anspired with respect to the issues on appeal. State v. Hopper , 695 S.W.2d 530 (Te nn. Crim. App. 1985); State v. Jones , 623 S.W.2d 129 (Tenn. Crim. App. 1981). Without a fully dev eloped transcript, this court must presume that the evidence supports the trial court's actions and rulings. State v. Baron , 659 S.W.2d 811, 81 5 (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-establi shed principles. Whether to grant or deny an application for pretrial diversion is within the discretion of the district attorney general. Tenn. C ode 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 certi orari after a refusal by the district attorney t

o grant pretrial diversio n, the hearing conducted by the trial judge is l imited to two issues: (1) whether the accuse d is eligible for div

ersion; and (2) whether the attorney general abused his discretion in refusing to divert the a

ccused. State v. Watkins , 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).4 In making the initial deter mination, the district attor ney must consider (1) the circumstances of the offense; ( 2) the defendant's criminal rec ord; (3) the defendant's social history ; (4) the defendant's physic al and mental condition; (5) the deterrent effect of punishme nt upon other criminal activity; (6) the defendant's amenability to correcti on; (7) the likelihood that pretrial diversi on will "serve the ends of justice" and the best interest s of the defendant and the public; and (8) the defendant's "attitude, behavior s ince arrest, prior r ecord, home environment, curr ent drug usage, emotional stabi lity, past employment, general reputation, marital stability, family r

esponsibility, and atti

tude of law enforcement." State v. Washington , 866 S.W.2d 950, 95 1 (Tenn. 1993) ( quoting State v. Markham , 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The natur e and circumstances of the alleged offenses are not only appropriate factors to be consi dered upon application for diversi on but may alone provide a sufficient basis for denial. Carr , 861 S.W.2d at 855; State v. Sutton , 668 S.W.2d 678, 68 0 (Tenn. Crim. App. 1984).

The circumstances of the case and a g eneralized need for deterrenc e, however, "cannot be gi ven controllingweight unless they are 'of such overwhel ming significance that they [ necessarily] outw eigh all other factors.'" Washington , 866 S.W.2d at 951 (empha sis and alteratio n in original) (quotin g Markham , 755 S.W.2d at 853). Where there are no "such exceptio nal circumstances, 'the di strict attorney general must consider evidence which tends to show that the applicant is amenable to correction [by div

ersion] and is not likel

y to commit further crimin al acts.'" Id. (alteration in origi nal); 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 o f the district attorney g eneral in making the init ial5 assessment: This requirement entails mor e than an abstract statement in the record that the distr ict attorney general

has considered these factors. He must articulate why he believes that a defendant in a par ticular case does not meet the test. If the attorney g eneral bases his decision on less than the full complement of factors enumerated in this opinion he must, for the r ecord, state why he considers that those he relies on outweigh the others submitted for his considerati on. "The decision of a district attor ney general granti ng or denying pretr ial diversion to an accused is said to be 'pr esumptively correc

t'; and the decision should not be set aside unless there has been a ' patent or gross abuse of prosec utorial discretion.'" State v. Perry , 882 S.W.2d 357, 36 0 (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 di strict attorney must s tate "the factual basis and rationale for denying di version"). Clearl

y, any appellant should always include the letter of denial in the recor d.

From the information available, it is apparent that the den ial of this application for diversi on must be upheld. See State v. Houston , 900 S.W.2d 712 (Tenn. Crim. App. 1995). Altho ugh the district attorne y 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 hi story and lack of candor both suggest a lack of amenability to rehabilitation. The significant amou nt of marijuana found in the storage unit of the defendant presents a particularly aggravated circumstance

.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge6 CONCUR:

_____________________________ William M. Barker, Judge

_____________________________ Curwood Witt, Judge