# FILED

Au gust 22, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE MA Y SESSION, 1997

STA TE OF TENN ESSEE, ) ) No. 01C01-9512 -CC-00401 Appellant ) ) MONTGOMERY COUNTY vs. ) ) Hon. Robert W. Wedemeyer, Judge CALVIN EUGENE HEA D, ) ) (E sp ec ia ll y ag gr ava te d r ob be ry; Ap pellee ) Conspiracy to commit

especially ag gr ava te d r ob be ry) State A ppeal For the Appell ee : For the Appell ant: MICHA EL R. JONES CHA RLES W. BUR SON Distric t Public Defender Attorney Gen eral and Repor ter 110 Sixth Avenue, W est Springfield, TN 37172 LISA A. NA YLOR Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 JOHN WESLEY CARNEY, JR. Distric t Attorney General AR THUR BIE BER Asst. Dist rict Attor ney General 204 Franklin Street Suite 200 Clarksv ille, TN 37040

OPINI ON FI LED: REMA NDED

David G . Hayes Judge1 T he Sta te s ub m its th at, a ltho ug h th is a pp ea l wa s f iled , by th e d istr ict a ttor ne y ge ne ra l’s offi ce, as an appeal as of ri ght under Tenn. R. App. P. 3, itis more prope rl y t reat ed as an interloc utory a ppe al und er T enn . R. A pp. P . 10(a )(1). 2 OPINION
The State of Tennessee appeals , pursuant to Tenn. R. App. P. 10, 1 from the order entered by the Mon tgomery C ounty Circuit Court requiri ng that the State provi de the defendant, Calv in Eugene Head, the same plea ag reement offered to Hea d's co-defendant s. The State contend s that the trial court wrongfully usurped the plea bargaining power expressly granted to the district attorney g eneral's office. We agree with the State an d vacate the o rder of the trial cour t.
In March, 1994, the Montgomer y County Grand Jury

indicted Cal vin Head and three co-defendants , all juveniles, on one count of especially aggrav ated robbery and one count of conspir acy to commit

especially

aggrav ated robbery

. The indictments st em from the January 25, 1994, robbery

of a sporting goods store in Cl arksvil le, during which an employee of the sto re was beat en with a crow bar . The employee suffered a fractured skul l and shattered cheekbone from the assault. H ead's three co- defendants, pursuant to plea offers recommended by the State, entered guilty pleas to the reduced charge of robbery, a class C felony and were placed on j udicial div ersion. Tenn. C ode Ann. § 40-35- 313(a)(1). The district

attorney r

efused, however, to recommend r eduction of the def end ant H ead ’s cha rge to robb ery, a class C fel ony whi ch wou ld ha ve permitted consideration for judicial diversion. The State argues their position is based upon the undis puted fact that it w as the defendant Head w ho struck the blow w ith the crow

bar. Subseq uently, He ad requested t hat he be prov ided the same plea arrang ement received by his co-defendants. At the hearing on th e defendant’s motion, the trial cour t found that Head was not the leader in the commission of the offense , tha t he was “learning disabled,” and that he “should3

be treated by

the State in a consistent and fair manner.” The tr ial court t hen ordered that the defendant Head be “provided the sa me settlement opport unity as the other three defendants.” After entry of the or der but prior

to the defendant 's guilty plea hearing, the State appealed, cha llenging the trial court's authority to intervene in plea negotiations. It is this appe al that is currently before this cour

t.
Although Rule 11(e) of the T ennessee Rules of Criminal Proce dure permits gui lty plea d iscussions between the di strict atto rney gene ral and the accused, the district attor ney general is not required to en gage in pl ea bargaining , see Weatherford v. Bursey , 429 U.S. 545, 561 , 97 S.Ct. 837, 8 46 (1977); State v. Ho dges , 815 S.W.2d 151, 155 (Tenn. 1991); Parham v. Stat e , 885 S.W.2d 375, 382 (Tenn. Crim. App) , perm. to appeal deni ed , (Tenn. 1994); nor does the acc used have a co nstitutional right to pl ea negotiation s. See Mabry v . Johnson , 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47 (198 4); W eatherford , 429 U.S. at 561, 97 S.Ct. at 846; State v. Washington , 661 S.W.2d 900, 904 (Tenn. Cr im. App. 1983), cert. denied , 467 U.S. 1208, 10 4 S.Ct. 2394 (1984). Mor

eover, even though plea neg otiations arepermitted, "the court shall not participate in any. . .[plea] discussions." Te nn. R. Crim. P. 11(e) (emphasis added). Thus, Rul e 11 express ly prohi bits the tri al court from or dering the S tate to enter into a specific plea ag reement wit h a defendant. See State v. Turner , 713 S.W.2d 327, 330 (Tenn. Crim. App.) , perm. to appeal deni ed , (Tenn.), cert. denied , 479 U.S. 933, 107 S.Ct. 407 (1986 ).

Notwithstanding the pl ain languag e of Rule 11(e), Tenn. R. Cri m. P., the doctrine of separ

ation of powers

further bars t he court from part icipating in plea negotiations . The doctrine of s eparation of pow ers, as set for th in Artic le II of the Tennessee Constit ution, is a fundamental principal of American consti tutional government. Town of South Car thage v. B arrett , 840 S.W.2d 895, 897 (Tenn.4

1992) (citat ion omitted). Our constitut ion divi des the power s of govern ment into three distinc

t, independent, and coordinate depart ments, namely, legislat ive, executive, and judicia l, with express pr ohibition against any

encroachment by one department u pon the powers, functions, and prerogatives of the others, except as di rected or per mitted by some other prov ision of the const itution. Richardson v . Young , 122 Tenn. 471, 491, 125 S.W . 664, 668 (1910) (emph asis added).
District attorneys general are officers of th e executive branch, who are entrusted by

the citiz ens of this state with the dut y to seek j ustice. See Stat e v. Gilliam , 901 S.W.2d 385, 389 (Tenn. Crim. App . 1995); State v. Pendergrass , No. 01C01-9504-CR-00121 (Te nn. Crim. App. at Nashville, Feb. 28, 1997). Accord Dearborn v . State , 575 S.W.2d 259, 262 (Tenn. 1978); Foute v. State , 4 Tenn. (3 Hayw.) 98 (1816). It is well established law that it is within the district attorney g eneral's dis cretion, and not the trial court's, to dec ide if and when a prosecution i s to be insti tuted, the preci se character of the offense to be charged, and, once institute d, whether the prosecution should go forw ard, enter into a plea bargain agreement, or dismis s the prosecuti on. State v . Williams , No. 03C01-9311-CR -00372 (Tenn. Cr im. App. at Knox ville, Mar. 24, 1995) , perm. to appeal denied , (Tenn . July, 10, 1995) (ci ting Turner , 713 S.W.2d at 330); Gilliam , 901 S.W.2d at 389. Because plea barg aining is a matter entirely w ithin the district attorney g eneral's dis cretion, the t rial court may notrequire the State to make a particul ar plea barg ain offer. Turner , 713 S.W.2d at 330.

The trial cour

t's order di recting t he State to ext end to the defendant, Calvin H ead, the same plea ar rangement prov ided to the threeco-defendants was a total departure from "the accepted and usual course of judic ial proceedings ." Turner , 713 S.W.2d at 330 (citing Tenn. R. App. P. 10( a)). Accordingl y, we find that the tri al court err ed in so order ing.5 For the reaso ns stated above, the order of the trial cour t is vacated, and the case is remanded to the trial court for trial or other appropriate proceed ings.

____________________________________ DAVID G. HA YES, Judge

CONCUR:

_______________________________ PAUL G. S UMMERS, Ju dge

_______________________________ JERRY L. SMI TH, Jud ge