### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 9, 2000 Session STATE OF TENNESSEE v. DANIEL SHANE MALONE Direct Appeal from the Circuit Court for Madison County No. 97-853 John F. Murchison, Judge

No. W1999-01678-CCA-R9-CD - Filed November 8, 2000

The Defendant was in

dicted for statuto

ry rape and cont

ributing to

the delinquency of

a minor. The District Attorney General denied the Defendant’s application for pretrial diversion. The trial court subsequently

granted pretrial diversion. Pursuant to Rul e 9 of the Tennesse e Rules of Appella

te Procedure, the trial court granted the State permission for an interlocutor y a ppeal, and this Court allowedthe State’s appeal. On appeal, the Stateargues that the trial court erred in granting pretrial diversion. We agree that the trial court committedreversible error in granting pretrial diversion and remand to the cir

cuit court for fu

rther proceedi

ngs. Tenn. R. App. P. 9 Interlocutory Appeal by Permission from the Trial Court; Judgment of

the Circuit Court

Reversed and Rem

anded. R OBERT W. W EDEMEYER , J., delivered the o p inion of the court, in which J AMES C URWOOD W ITT , J R . and J ERRY L. S MITH , JJ., joined. Pa ul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General , James G. Woodall, District Attorney General, and Shaun A. Brown, Assistant District Attorney General, for the appellant, State of Tennessee. Tony A. Childress, Assistant Public Defender, Jackson, Geor ge Morton Googe, D istrict Public Defender; and Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellee, Daniel Shane Malone. OPINION On November 24, 1997 , the Madison County G rand Jury indic

ted the D efendant, Daniel Shane Malone, for three counts of statutory rape and two counts of contributing to the delinquency of a minor. The trial

court ordered a

n investigation to de

termine whether

the Defendant w

as suitable-2-

for pretrial diversi

on. The pretrial i

nvestigation repo

rt indicated that t

he Defendant, w

ho was twenty years old at

the time of the alleged offenses, had sexual intercourse with a fifteen-year-old girl on three separate occas ions. I n her statement, th e victim said that th

e Defendant pro

vided her with alcohol and marijuana before each encounter. The victim became pregna nt and later had a miscarriage. According to the report, the Defendant had no prior criminal history. The report also showedthat the Defendant had been working since he was seventeen year s old in a masonry bus

iness of which he was part-owner and that he expressed a willingness to make any restitution ordered.

After the investigation report was released, but before an application for pretrial diversion was filed, the Dis

trict Attorney de

nied the Defenda

nt's application c

iting the following r

easons: 1. The facts of this case involve 4 occasions of Statutory Rape by the defendant on 3 different

occasions, which resulted in the 15 year old victim becoming pregnant. 2. It is the defendant's responsibility to provide this office with sufficient evidenceof his qualifications for pretrial diversion. The defendant has failed to provide this

office with any e

vidence and havi

ng failed in

this obligation the defendant cann

ot be granted pre

trial d iv ersion. State v. Herron , 767 S.W.2d 151 (Tenn. 1989). 3. The defendant's crimes wer e no t the result of impulse but required considerable

effort and planning. St at e v. Holland , 661 S.W.2d 91 (Tenn. Crim. App. 1983). 4. The defendant

has expressed no remorse for his conduct nor has he made any effort to make his victim whole. State v. Nease , 713 S.W.2d 90. 5. The defendant has a poor work history indicating a serious lack of motivation to successfully complete pretrial diversion. 6. No family or friends are forthcoming to aid or encourage the defendant in any pre trial diversion program. Without such encouragement the defen dan t cannot hope to successfully complete pretrial diversion. 7. Statutory Rape and Contributing to the Delinquency of a Minor are serious problemsin this jurisdiction and allowing the defenda nt to participate in pretrial diversion would greatly undermine law enforcement eff orts at curtailing this type of criminal activity. State v. Hol lan d , 661 S.W.2d 91 (Tenn. Crim. App. 1983).1 The documents exhibi ted consis

ted of the “denia

l” let ter from General Woodall to Ms. King (Exhi bit 1) and the JacksonPolice Departm ent Incident Rep ort (Exhibit 2). The trial court stated that it would also consider the “presentence report,” w hich wa s filed as Ex hibit “A” to the Petition for Writ o f Certiorari. -3- 8. The defendant willingly involved a juvenile in his crime. 9. There is no indication that the defendant would have stopped his/her criminal activity but for the intervention of law enforcement. State v. Markham , 755 S.W.2d 850. 10. The defendant wa s indicted for these multiple counts of Statutory Rape (3 counts) and Contributing to the Delinq ue ncy of a Minor (2 counts) on November

24, 1997 and was arraigned on those charges on Dece mber 2 , 1997, and did not apply for pretrial diversion until June of 1999, which has caused a considerable delay.

The District Attorney

went on to say that h

e balanced th

e above listed factors against the mitigating circumstances supplied to his office; however, the mitigating circumstances were not explicitly listed in the denial. The Defendant filed an application for a writ of certiorarion August 4, 1999. After a brief certiorari hearing on September 14, 1999 which consiste d of statements by the at torneys and the exhibiting of pe rtinent documents , 1 the trial court took the matter under advisement. On October 27, 1999 the trial court entered an order stating in part that “the defendant should be granted diversion because the defendant is charged with a Class E felony, the defendant has no prior criminal record, and the defendant is 21 years of age. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the decision of the District Attorney General to deny diversion is overruled.” The trial court did not find that the District Attorney General abused his discretion. Fromthis record, we c

an only conclude t

hat the trial cour

t granted diversi

o n t o the Defendant because t he Defendant “has no prior criminal record, and . . . is 21 years of age” and bec ause th e Class E felony charge in this case is an offense for whi

ch pretrial dive

rsion is not exclude

d by statute2 Statutory rape is not included as

a “sexual of

fense” for

which a defendant

would be disqual

ified f rom seeking pre-trial dive rsion. See Tenn. Code An n. § 40-15-105(a)(1)(B)(ii)(a)-(h). -4- as a possible disposition. The State of Tennes see, pursuant to th e Tennessee Rule

s of Appellate Procedure 9(d), now appeals the trial court's decision to allow pretrial diversion.

Pretrial diversion allows the district attorney general to suspend prosecution for a period of up to two years against a defendant who meets certain statutory requirements. See Tenn. Code Ann. § 40-15-105(a)(1)(A). In order to qualify forpretrial diversion, the defendant must not have previously

been granted div

ersion under this s

tatute; must

not have a prior misdemeanor conviction for which a sentence of confinement was served or a prio r felony conviction within a five-year periodafter completing the sentence or probationary period for such prior conviction; and must not be seeking diver sion for aClass A or B felony, a sexual offense, 2 driving under the influence, or vehicular assault. Id. § 40-15-105(a)( 1)(B)(i)(a)-( c). Such eligibility

does not presumptiv

ely entitle

a defendant to

pretrial diversion, but rather places such a decision within the discretion of the district attorney so long as the defen dant is statutorily qualified. State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999).

It is the defendant's duty to demonstrat e suitabi lity for pretrial diversion. State v. Herron , 767 S.W.2d 151, 156 (Te nn. 1989); State v. Winsett , 882 S.W.2d 806 , 809-10 (Tenn. Crim. App. 1993). However, this re

quirement does not

relieve the pros

ecutor of his

or her duty to consider

and articulate all the relevant factors. Curry , 988 S. W.2d at 157. The distric t attorney is requ

ired to consider all relevant factors when determining wheth er or not to grant pretrial diversion. State v.-5-

Carr , 861 S.W.2d 850, 855 ( Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined the criteria that should be considered by the prosecutor in granting or denying pretrial diversion: When deciding whether to enter into a mem oran dum of understanding under the pretrial diversion statute a prosecutor should

focus on the defe

ndant's amenabili

ty to correction. Any factors which tend to accurately r eflect whether a particular defendant will or will not become a repeat offender should be considered. Such factors must, of course, be clearly articulable and stated i n the record in order that meaningful app e llate review may be had. Among the f

actors to be consi

dered in addition to the circumstances of the off ense are the defendant's criminal record, social history, the physical andmental condition of a defendant where appropriate, andthe likeliho od that pret rial diversion will serve the ends of

justice and the be

st interest of both the public and the defendant. State v. Hammersley , 650 S.W.2d 352, 355 (Tenn. 1983); see also Curry , 988 S.W.2d at 157.

Where pr etrial diversion i s denied by the distr

ict attorney, the

factors and evid

enc e considered

in making the decision must be clearly set forth in writing along with theweight accorded to each factor. Pinkham , 955 S.W.2d at 960; Winsett , 88 2 S.W.2d at 806. The district attorney general must do more than abstractly state that he or she has considered each of the factors. Herron , 767 S.W.2d at 156. Rathe r, the factors mu

st be "clearly ar

ti culable and stated in the record." Hammersley , 650 S.W.2d at 355. Fa ilure to consider

and articulate

a ll of the relevant factors constitutes an abuse of discretion. See Curry , 988 S.W.2d at 157-58.

A defendant who has been denied pretrial diversion by the district attorneyhas the right to petition for a

writ of certiorari to the trial court for an abuse of prosecutorial discretion. Tenn. Code Ann. § 40-15-105(b)(

3). Although presu

mptiv ely correct,

a trial court may overrule a district attorney's denial of pretrial diversion where there has been an abuse of discretion. However, the trial-6-

judge cannot

simpl y substitute his or her own judgment for that of the district attorney. State v. Watkins , 607 S.W.2d 486, 488 (Tenn. Crim. App 1980). To show prosecutorial abuse of discretion, the record must lack any substantial evidence to support the denial of pretrial diversion. Curry , 988 S.W.2d at 158.

The legislature has vested the authority to prosecute a case or divert it with the prosecutor rather than the court. See Tenn. Code Ann. § 40-15-105; State v. Carr , 861 S.W.2d 850, 858 (Tenn. Crim. App. 1993). In reviewing the prosecutor’s denialof diversion, the t rial court must look

at all the relevant factors to determine whether the prosecutor considered them, and if he or she did not, to determine whether pretrial diversion is appropriate. Herron , 767 S.W.2d at 156; Carr , 861 S.W.2d at 858. In reviewing

whether the pros

ecutor has abuse

d his or her discretion regarding diversion, the trial court must

under take the same process required of the prosecutor in considering and weighing the relevant factors. Herron , 767 S.W.2d at 156.

In the present

case, there is

nothing in the record to indicate that the trial court undertook the appropriate

weighing process. Nor is there anyt hing in the record to indicate that the trial court properly reviewed the Dis

trict Attorney Ge

neral’s denial of pretrial diversion for an abuse of discretion. Based on the reco rd before us, we

can only conclude

that the trial cour

t imprope rly substituted its judgment for tha t of the District Att

orney General.

TennesseeCode Annotated § 40- 15-105(b)(3) provides in pertinent part: “If t he trial court finds that the prosecuting attorney has committed an abuse of discretion in fa i ling to divert, the trial court may order the prosecuting attorney to place the defendant on diversion status on such terms and conditions as the t r ial court-7-

may order.” Because the trial court failed to findthat the prosecut ing attorney commit

ted an abuse of discretion in failing t o diver t in this case, the trial court erred in ordering diversion for the Defendant.

For these reasons, we REVERSE the judgment of the trial court and REMAND this case to the Madison County Cir

cuit Court for fur

ther proceeding

s.

___________________________________ ROBERT W. WEDEMEYER, JUDGE