### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 7, 2001 Session STATE OF TENNESSEE v. TERRY A. ROGIER Interlocutory Appeal from the Circuit Court for Madison County

No. 00-381 Donald H. Allen, Judge

No. W2001-00551-CCA-R9-CD - Filed September 19, 2001

The Appellant, Terry

A. Rogier, by means of

an interlocutory appeal seeks review of the trial court’s decision affirming the district attorney general’s denial

of pre-trial diversion. Rogier was indicted by a Madison County

Grand Jury f

or the offenses o

f reckless enda

ngerment, a cla

ss E felony, and reckless driving, a class

B misdemeanor. After review, we find that the prosecutor failed to consider all the relevant factors in denying div ers ion . Ac cord ingl y, we reverse the trial court’s finding that the prosecutor di

d not abuse his discr

etion and remand t

o the trial court f

or further proc

eedings. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Rever

sed and Remanded.
D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Kyle C. Atkins, Humboldt, Tennessee, for the Appellant, Terry A. Rogier. Paul G. Summ ers , Attorney General and Reporter; Michael Moore, Solicitor Genera l; Laura McMullen Ford, Assistant At torney Gen

eral; James G. (Jerr

y) Woodall,

District Attorney

General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION Factual Backgrou

nd On September 15, 1999, the thirty-six-year-old Appellant was driving in a residential area in Jackson when he lost control of his vehicle while roundinga curve. At the tim e of the impact, it was estimated that the Appellant was traveling 74 mph in a 30 mph zone. The vehicle overturned seriously injuring both the Appellant and his passenger. The EMT’s report noted an odor of alcohol on the Appellant, however, no blood alco hol tests were perf ormed by the

police. Following

his indictmentfor class E reckless endang erment and reckless driving, the Appellant applied for pre-trial diversion. After the Appellant’s initial application was supplemented with additional background-2-

information, the district attorney general notified theAppellant by letter that his application for pretrial diversion was denied. The district attorney cited six reasons for denial of the application for div ersion. We recite below th e prosecutor’s s

tated reasons an

d the proof which w

as submit ted t o the district attorney by the Appellant relative to e ach. 1. The defendants (sic) crimes were not the result of impulse but required considerable effort and planning. State v. Holland , 661 S.W.2d 91 (Tenn. Crim. App. 1983). As argued by the Appellant, the defined mental state of the cr imes for whichthe Ap pellant was indictedreflect that the offenses were committed recklessly, i.e. , with gross deviation from the standard of care, essentially the opposite of “considerable e ffort and planning.” 2. The defendant has e xpressed no remors

e for their (sic) conduct nor has he made any effort to make the victim whole. State v. Nease, 713 S.W.2d 90. Provided to the district a tto rney was a release of all claims by the passenger indicating that the Appellant’s insurance carrier paid the passenger $100,000.00, the policy limit. Also includedwas a letter from the passenger, supporting the Appellant’s efforts seeking diversion, which contained the following re

levant comments: After the accident, [th

e Appellant] had his family to bring him by to visit me on several occasions when h

e was unable to

drive himself. When he wa s unable to visit he would call to see how I was doing. His family also gather (si

c) several peop

le to donate blood on my be

half when I w

as in th e hospital. We still are friends and continue to talk to e

ach other and vis

it each other on oc

casions. 3. The defendant has a poor work history indi cating a serious lack of mo tivation to successfully complete pretrial diversion.
Letters from the Appellant’s former employers were provided to the district attorney detailing the Appellan t’s exemplary employment history and work ethic. The Appellant was first employed a t age fourteen a nd worked th roughout hi gh school. Later, he worked six to seven nights a week for thirteen years, whi

le at t he same tim e bu ild ing a suc cess ful con str uct ion com pan y dur ing t he d ay. The Ap pellant currently owns and operates Rogier Construction Company . He holds both a n electrical contractors license and a building contractors license. 4. No family or friendsare forthcoming to aid or encoura

ge the defenda

nt inany pretrial diversion program. Without such en cou ragement the de fendant cannot h

ope to successfully complete pretrial diversion. Twenty-four

letters from former empl oyers, bank officers, b

usinessmen in the c

ommunity, the

parish priest, friends and others were included in the Appellant’s application for diversion. These letters attest to the Appellant’s

excellent reputa

tion in his community

, his honesty

and his integrity

, his role-3-

as a devoted

father and as someone who was always willing to help others in need without asking anything in return. He is married to his wife of sixteen years and t hey have two children, ages sixteen and two. 5. Crimes involvi ng the reckles s use of vehicles i s (sic) a serious p

roblem in this jurisdiction and allowin

g the def endant to partici

pate in pretrial d

iversion would greatly undermine law enforcement efforts at curtailing thi s typ e of c rim ina l ac tiv ity.
6. The defe nda nt h as a c rim ina l hi sto ry. For the past sixteen years, the

Appellant has not b

een cited for an

y traffic v iolation or charg

ed with any criminal offense. The pre-sente nce report noted

no problems with

alcohol or drug use. During the Appellant’s early youth (ag es 17-20), he was issued five citations by the Hu mbold t municipal court. The pre-sentence report reflects forfeitures for the following

ordinance violat

ions: speeding, two publi c intoxic ations, re sisting arr est, failu re to maint ain control and reckles s driving. The district attorney

’s letter stated in

conclusion that, in

addition to the above specific reasons for denial, the Appellant’s “extremely excessive speed, prior driving history and the apparent use of alcohol” factored heavily into his decision to deny diversion. At the hearing for writ of certiorari, the trial court found that the district attorney improperly considered

factors 1 through 4 as ground s for denial of diversion as the proof indicated to the con tra ry. Notwithstanding, the trial court held that the district attorney did not abuse his discretion by denying pre-trial diversion based upon the appropriate dete rminations that (1) the reckless use of vehicles was a serious problem in the jurisdiction; (2) the facts of this case suggested that alcohol was involved in the accident; and (3) the Appellant was not a suitable candidate for diversion because of his past cri minal recor d and the fact that his record was directly related to the pre sent offense. Following this ruling, an application for interlocutory appeal was f iled and granted. ANALYSIS The decision to grant pre- trial dive rsion rests within the discretion of the district attorney general. Tenn. Code Ann. § 40-1 5-105(b)(3) (19 94 Supp.); see also State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983); Statev. Houston , 900 S.W.2d 712, 714 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995) . In Hammersley , our supreme court held: [a] prosecutor should focus on thedefendant’s ame nability to correction. Any factors which tend to accurately reflect whether a particular

defendant will or

will not become a repeat offender should

be considered . .

. . Among the fac

tors to be consi

dered i n addition to the circumstances of the offense are the defendant’s criminal record, social his tor y, the physical and mental condition of a defendant where appropriate, and the likelihood that

pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant. Hammersley , 650 S.W.2d at 355.-4-

Other factors which have been held relevant in determining suitability for pre-trial diversion are: the deterrent effect of punishment upon other criminal activity, t he applicant's attitude, behavior since arrest, home environment, current dr ug us age, emotional stability, past employment, ge neral reputation, marital stability, family responsibility, a nd attitude of law enforcemen t. State v. Washington , 866 S.W.2d 950, 951 (T enn.1993) (cita

tions omitted); see also Houston , 900 S.W.2d at 714. The district attorney general's de

cision regardi

ng pre-trial di

version is presump

tively corr

ect. State v. Pinkham , 955 S.W.2d 956, 960 (Tenn.1997). If pre-trial diversion is denied, the denial must be in writing and must include an enumerat ion of the evidence that was considered and a discussion of the factors considered and weight afforded each. This requirement entails more than an abstract statement in

the record that the district attorney general ha s considered these factors. State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999) (citations omitted).
For purposes of our review, the findings of the trial court are b

inding on this cour

t unless the evidencepreponderates against such findings. Houston , 900 S.W.2d at 715. We

review thecase, not to determine if the trial judge has abuse d his discretion, bu

t to determine if the evidence preponderates against the findin g of the trial judge who holds that the district attorney general has or has not abused his discretion. State v . Watkins , 607 S.W.2d 486, 489 (Tenn. Crim. App. 1980). Thus, the underlying

issue for our dete

rmination remains

w hethe r or not, as a matter of law, the prosecutor abusedhis discretion in denying pre-trial diversion. State v. Carr , 861 S.W.2d 850, 856 (Tenn. Cri m. App. 1993). With these

principles firmly established, we, in turn, examine those reasons which were articulated by the prosecutor and accredited by the trial judge in denying diversion. Deterrence The district attorney

denied pre-tria

l diversion in part b

ecause “crime

s involving the re

ckless useof vehicles is (sic) a

serious problem in this juris diction and allowin

g the defendan

t to participate in pre-trial diversion would greatly underm ine law e nforcement efforts at curtailing this type of criminal activity

.” The trial cour

t also noted such a p

roblem. “No one is in a better position to be informed of c

riminal activity

in a circuit than the District Attorney General.” State v. Holland , 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983) (diversion was deniedbased in part upon the problem of serious, simil ar crimes within th e circuit and the

need to deter such crimes). In t

he present case

, the district attor

ney gene ral was entitled to

rely upon his own institutional knowledge of criminal activity, but he was constrained

to identify the factual basis and rationale for the use of deterrence. State v. Lane , No. E-1999-00615-CCA-R9-CD (Tenn. Crim. App. at K noxville, June 1, 2000), perm. to appeal denied , (Tenn. 200 0) (citing Pinkham , 955 S.W.2d at 960). The record reflects that no f actual basis or rationale for the application of deterrence was offered by the prosecutor.1 Under Tenn. Code Ann. § 55-10-207 (d) (1998), “the pe rson cited [for a traffic offense] may elect not to contest

the charge a nd may, in lieu of appearance in court

, submit th

e fine and cost

s to the cle

rk of the court

.” A jurisdi

ction which allows payment

of a prescheduled amount employs the “ca

feteria” syst em. Williams v. Brown , 860 S.W.2d 854, 856 (Tenn. 1993) (citing Hannah v. I ke Topper Struc

tural S teel Co. , 201 N .E.2d 63 , 65 (196 3)). -5- Criminal History Diversion was also denied because “the defendant has a criminal history.” Although we do not dismiss the Appellant’s previous sixteen-year-old plus municipal ordinance violations, we b eliev e it important to disting

uishbetween municipa

l proceedings a

nd convictions fro

m a court with

criminal jurisdiction. The Appellant’s “criminal history” is based upon violatio ns of Humboldt city

ordinances, which resulted from forfeitures. Therefore, no court appearances we re made by the Appellant; he simply paid fines. 1 “Cases involving violation of city ordinances are

not criminal prose

cutions .

. . they are civil in nature having as their object the vindi cation of domestic regulat ions." Briggs v. City of Uni on City , 531 S.W. 2d 106, 107 (Tenn.1975 ) (citing Metro. Gov’t of Nashville & Davidson County v. Allen , 52 9 S. W.2 d 69 9, 7 07 ( Ten n.1 975 )). Add iti ona lly, payment of a traffic fine in lieu of an appearance in court is neither a guilty plea no r a n express acknowledg ment of guilt. There are many legitimate and plausible re asons for choosing to pay such a fine by mail or other wise, wit hout intending to c

oncede guilt. Common experience demonstrates that the payment of a traffic citat

ion is simply a matter of expedience. The cost of

defense compared with the amount of the fine and the inconvenience, as well as the ind irect econ omic losses of court appearances, are practical considerations which often motivate an individual cited for a traf fic violation to simply pay the fine. Williams v. Brown , 860 S.W.2d at 856 (citations omitted). Furthermore, the offenses occurred within a relatively short period of time, a thre e year per iod, andmos t im por tan tly, occurred sixteen years ago. In the past sixteen years, the proof indicates that the Appellant has been a responsible and law-abiding citizen. Circumstances

of the Offense The district attorney

general in his N

ovember 13, 2000,

letter stated, “I

especially

find that ... the apparent use of alcohol in this case

warrant(s) denying y

our request for diversion.” Also, the trial court found, “the facts and circumstances indicate, perhaps drinking was involved.” The trial court notedthat the EMTs smelled alcohol when they arrive d on t he scene. No blood alcohol test was conducted. No substantial evidence exists to find that alcohol was involved in this accident.-6- CONCLUSION Caselaw has firmly established that the focus of a pre-trial diversion request is upon the applicant’s amenability to correction. Any denial of dive rsion must be accompanied by consideration of all relevant factors with a discussion of those facto rs considered and the weight afforded each. Statev. Curry , 988 S.W. 2d 153, 157 (Tenn. 1999 ) (citing Statev. Pinkham , 955 S.W.2d at 960). In other words, the prosecutor may not focus entirely upon the charged offense, but must also consider the offender, his or

her amenability

to correction and

whether the off

ender is likely

to reoffend. Thi

s procedurewas not followed in the instant case.

It isapparent from th

e record that, by

focusing almost excl usively upon the need for deterrence, the undermining of law enforcement ef forts, the circumstances o

f the offense an

d a stale cri min al h ist ory, the Appellant’s almost entire adult life as a contributing mem

ber of society

is of no importance. After review, we find those factors which are indicative of amenability to correction, i.e. , th e Ap pel lan t’s exc ell ent emp loym en t history, his reputa ti on for honesty and integrity a nd acts of charity in his community, a stable marriag e and devotedfather of tw o, and his s tatus as a l aw abiding ci tizen for t he past six teen plus years outweigh those reasons cited by the prosecutor in deny ing diversion.
For the reasons stat ed above, we reverse the trial court’s ruling that the prosecutor did not abuse his disc retio n in denying pre-trial diver

sion. This case is r

emanded to the tri

al court with instructions that a memorandum of understanding be entered for a period of two y ears with imposition of appropriate conditions as provided by Tenn. Code Ann. § 40-15-105(a)(2)( A)-(H).

___________________________________ DAVID G. HAYES, JUDGE