# FILED
November 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: NOVEMBER 17, 1997 Appellee ) ) SHELBY COUNTY v . ) ) HON. JULIAN P. GUINN, CHARLES A. PINKHAM, JR. ) JUDGE ) Appellant ) NO. 02-S-01-9611-CR-00096

For Appellant : For Appellee : LARRY RICE JOHN KNOX WALKUP Memphis, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELIZABETH T. RYAN Assistant Attorney General Nashville, TN JUDSON W. PHILLIPS LEE V. COFFEE Assistant District Attorneys General Memphis, TN

OPINION1 Tenn. Code Ann. § 40-15-101 et seq. (1991). 2 AFFIRMED BIRCH, J.

We granted the application for permission to appeal filed byCharles A. P inkham, Jr ., in order to determine the extent to whichthe district attorney general must disclose on the record the evidence relied upon t o re ject an application for pretrial diversion. 1

We find that the district attorney general has a duty to include in the record the factual basis and rationale for denying diversion. If, in petitioning the trial court for revi ew of the diversio n de cision, the petitioner contests the facts upon which the district attorney general relied, then the trial court should hold an evidentiary hearing to resolve the factual dispute. The trial court should not consider any evidence shown to be materially false or obtain ed in violation of constitutional rights as it determines whether the district attorneygeneral abused his or her discretion in rejecting the pretrial diversion application.

In the case under submission, Pinkham did not challenge the evidence relied upon by the district attorney general. Rather, he contended that a portion of it was irrelevant, remote, and unreliable. Our review of this evidence leads us to conclude that the district attorn ey general did not abuse his discretion in2 Tenn. Code Ann. § 23-3-108 (1994), a Class E felony.
3 Tenn. Code Ann. § 39-16-301 (1991), a Class B misdemeanor.
4 Tenn. Code Ann. § 39-16-703 (1991), a Class D felony. 3 de nying pretrial diversion. For the reasons herein stated, th e judgment of the Court of Criminal Appeals is affirmed.

I

The record establishes that Pink ham, at the time not licensed to practice law in any jurisdic tion , prepared and supervised the execution of the will of Hilda Bratton. After Bratton’s death, proceedings to contest the will were init iated. Because the will had not been properly attested, Bratton’s estate passed according to the la w of i ntestacy, and the intended beneficiaries received approximately $90,000 less than they would have received had t he will been admitted to probate. During the will contest, Pinkham was asked by the trial court if he was an attorneylicensed to practice in Tennessee. Pinkham responded that he was so licensed; this response was untrue.

Subsequently, Pinkham was indicted for falsely
re presen ting himself as a lawyer, 2 impersonating a licensed professional, 3 and aggravated perjury. 4 As permitted by Tenn. Code Ann. § 40-15-101 et seq. (1991), Pinkham applied to the district attorney general for pretrial diversion.4 His application shows that Pinkham is the fifty-fiv e year-old married father of two. As a youth, he attained the Eagle rank in scouting, excelled in athletics, and served as a president of the student body of his high school. He attended the University of California and graduated with a d egree in b usiness. He then entered law school at Golden Gate University and graduated as one of the top students of his class. Pinkham was admitted to the practice of law in California.

Pinkhamstates that in 1983 he became addicted to alcoho l. This disease, he says, caused him to neglect his law practice. In 1986, he surrendered his California law license and
was admitted to a ten-week inpatient rehabilitation program. Upon release from this program, Pinkham and his family relocated to Memphis, where he obtained employment as a financial planner.

Pinkham’s application is replete withletters of support fromindividuals in the community. It is clear that he has devoted substantial time and energy to his church and the community.

After considering Pinkham’s application, the district attorneygeneral rejected his applicatio n fo r pretrial diversion and gave the following explanation:

A. The circumstances of the case indicate that the defendant engaged ina systematic and continuing criminal activity. . . .

. . . . Having engaged in the unauthorized practice of law, Mr. Pinkham5 compounded [the] original criminal behavior by lying under oath when questioned by Judge Southern--some ten months later . . . . I n addition to committing three (3) separate offenses for which he is indicted, Mr. Pinkham has a fourth uncharged offense in which he contracted to prepare another Will for a Charles E. Shartle on March 23, 1993. B. The magnitude of the losses suffered by the victim mandate against Mr. Pinkham’s application for dive rsion. . . . The actual or/and potential amounts of restitution are so enormous that pre-trial diversion is not only inappropriate but also impractical. C. I believe further that Mr. Pinkham is not a suitable candidate for pre-trial diversion because Mr. Pinkham, unfortunately, has a history of dishonesty and unethical behavior. Mr. Pinkham voluntarily resigned from the California Bar on December 31, 1986, while a disciplinary proceeding was pending to disbar Mr. Pinkham. The State of California alleged that Mr. Pinkham: engaged in professional misconduct; violated his oath and duties as an attorney ; misa ppropriated o r converted client funds; abandoned his clients; and/or committed acts involving mor al tu rpitude , dishonestyand/or corruption. Having voluntarily surrendered his California law license, Mr. Pinkham engaged in the criminal and egregious conduct which led to his current indictments. . . . Lastly, Mr. Pinkham continued to demonstrate aninability or unwillingness to tell the truth when he spoke with an investigator with the Attorney General’s office on November 23, 1993. . . . D. There is an overwhelming need for deterrence in this cas e. . . . We must deter individuals from unlawfullyengaging in the unauthorized practice of law. If6 this defendant were placed on diversion, other citizens may be encouraged to practice law without a license. Other individuals may receive a false message that, if detected engaging in the practice of lawwithout a license, the punishment is minimal. We cannot send a message to this community that a defendant will not be punished if that defendant has the financial wherewithal to “buy his wayout of trouble.” We s hall not send a message that the Attorney General condones a defendant’s intentionallylying to a Judge

. . . . Inmaking this decision to reject the defendant’s diversio n application, I have considered that Mr. P inkha m is a 50 year old man withno criminal record. I have considered his exemplary social history. I have considered that Mr. Pinkhamappears to be a leader in his community, as evidenced by the character and reference letters from lawyers, teachers, professors, ministers, doctors, et al. I have considered all of the parameters of Mr. Pinkham’s social, family, personal, educational an d professional background. I have weighed all those factors in deciding whether the interests of justice would be served best by placing Mr. Pinkham on diversion. I have concluded that the interests of the public substantially outweigh the interests of the defendant. Since Mr. Pinkham is a highly educated person who holds a law degree, Mr. Pinkham knew that his conduct was unlawful and unethical. Unquestionably, Mr. Pinkham made a deliberate choice to violate the law. Having violated the criminal laws of the State of Tennessee, Mr. Pinkhammade an unconscionable decision to engage in a continual patternof deception and dishonesty. Mr. Pinkham deliberately chose to engage in systematic and continual pattern of criminal activity . . . .7 Sadly, Mr. Pinkham’s actions demonstrate a continuation of the unethical, unprofessional and illegal conduct which caused him to lose his California Law license. After considering and weighing all the factors enumerated above, I must denythe application for diversion of Charles A. Pinkham, Jr. . . .

II

The decision to gr ant or deny pretrial diversion is a discretionaryone that lies with the district attorney general. Pace v. State , 566 S.W.2d 861, 864 (Tenn. 1978). T he d istrict attorney general must consider all relevant factors in making his or her decision. State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). In Hammersley , we outlined these factors:

When deciding whether to enter into a memorandum of understanding under the pretrial diversion statute a prosecutor should focus on the defe ndant ’s amenability t o correction. Any factors which tend to accurately reflect 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 in the record in order that meaningful appellate review may be had. Among the fact ors t o be considered in addition to the circumstances of the offense are the defendant’s criminal record, social history, the physical and mental conditionof 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.8

State v. Hammersley , 650 S.W.2d 352, 355 (Tenn. 1983). If the district attorney general denies pretrial divers ion, that denial must be written and must include both an enumeration of the evidence that was considered and a discussion of the factors considered and weight accorded each. State v. Winsett , 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). In addition, the district attorney general should identify any factual disputes between the evidence relied upon and the petitioner’s application. Id.

Upondenial of pretrial diversion by the d ist rict attorney general, the petitioner may petition the trial court for
a writ of certiorari and review of the district attorney general’s decision. In petitioning the trial court for review, th e petitioner s houl d identify any part of the district attorney general’s factual basis he or she elects to contest. We wou ld expect such contests to be limited to matters that are materially false or based on evidence obtaine d in v iolation of the petitioner’s constitutional rights. If there be a factual dispute, the trial court should conduct an evidentiary hearing and resolve the dispute before determining wheth er the district attorney general abused his or her discretion in denying pretrial diversion. See id. The action of the district attorney general is presumptivelycorrect, and it is subject to review by the trial court only for an abuse of discretion. Hammersley , 650 S.W.2d at 356; Pace , 566 S.W.2d at 870 . As we stated in Hammersley , “[t]he record must show an absence of any substantial evidence to support the refusal of the District Attorney General to enter into a9

memorandumof understandin g befo re a reviewing court can find an abuse of discretion.” Id.

III

Onappeal, we review to determine whether the trial court’s decision is supported by a preponderance of the evidence. State v. Houston , 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995).

Pinkhamprincipally c ontends that we should require a district attorney general to include in the record all the evidence relied upon to deny diversion, specifically in this case, evidence of the circumstances of Pinkham’s surrender of his California license and the related uncharged offense(s). We discern, however, nothing in the statute or in our prior cases to support such a requirement. Rather, the district attorney general is simply
re qui red to identify the factual basis and rationale for the decisionto deny pretrial diversion. See Winsett , 882 S.W.2d at 810; Hammersley , 650 S.W.2d at 355 . Moreover, a requirement such
as Pinkham suggests would be unduly burdensome and likely unnecessary. For example, the information about the surrender of the Cal ifo rnia license could well have come from a confidential
source. Certainly, the district attorney general may elect to include such information in the record that is transmitted to the trial court. Such information may assist the trial court and could conceivably make an evidentiary hearing unnecessary. We decline,10

however, to require this. Al l that i s required is that the information be sufficiently detailed in the denial letter, so the petitioner can ascertain the existence of a factual dispute.

Because Pinkham did not dispute the factual basis for the district att orney general’s decision, there was no pressing need for the trial court to hold an evid entiary hearing. Rather, the trial court could have considered the matter on the record, presumablycomprised of the indictment, the petition, and the response of the district attorney general. Further, we find that the district attorney general properlyconsidered the circumstances surrounding the surrender of Pinkham’s California license and the uncharged offense(s) in evaluating Pinkham’s application for pretrial diversion. This information is relevant to and probative of the petitioner’s amenability to correction, his risk to reoffend, and whether pretrial diversion is in the best interests of the public. It was certainly no more remote than Pinkham’s recitation of his youthful accomplishments and no less reliable than the letters of support attached to his application.

We have carefully reviewed the district attorney general’s letter denying Pinkham pretrial diversion. In it he clearlyidentified the information upon which he relied. Moreover, he extensively discussed the factors he considered, the weig h t accorded to each, and his con clusion. The district attorney gene ral’s procedure fulfilled the requirements of Hammersley and Winsett
.11 Inour view, the trial court’s decision upholding the district attorney general’s rejection of Pinkham’s application for pretrial diversion is supported bya preponderance of the evidence in the record. It follows that the judgment of the Court of Criminal Appeals is affirmed. Costs of this appea l are taxed to the appellant for which execution may issue, if necessary.

______________________________ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Reid, Holder, JJ.