# FILED

March 8, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT DYERSBURG )

FOR PUBLICA

TION Filed: March 8, 1999
STATE OF TENNESSEE, ) ) CARROLL CRIMINAL Appellee, ) ) ) Vs. ) HON. C. CREED MCGINLE Y, ) JUDGE ) CAROLYN L. CURRY ) ) NO. 02-S-01-9709-CC-0 0079 Appellant. )

For Appellant: For Appellee: Donald E. Parish John Knox Walkup IVEY, PARISH & JOHNS Attorney General & Repor ter Huntingdon, Tennessee Michael E. Moore Solicitor General Timothy F. Behan Assistant Attorney Gener al Nashville, Tennessee

At Trial: Robert Radford District Attorney General Eleanor Cahill Assistant District A

ttorney General Huntingdon, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPE ALS REVERSED; JUDGMENT OF THE TRIAL COURT REINSTATED. ANDERSON, C.J1 Ora l argu me nt wa s hea rd in th is cas e on M arch 4, 19 98, in Dyers burg , Dyer Cou nty, Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents) project. -2- We granted this appeal to determine whether the trial court properl

y ruled that the prosecution abused its discretion by failing

to consider all of the relev ant factors in denying the defendant’ s application for pretrial diversion, and wheth er the Court of Crimina l Appeals erred in remanding the ca se for an eviden tiary hearing. 1 The Court of Criminal Appeals ag reed that the prosecutor’s w ritten letter denying diversion did not discuss all of the relevant factors, but remanded f or an evidentiary hearing to allow the prosecutor to testify as to the factors that were considered in denying pretrial di

version.

After reviewing the record and controlling authority, we concl ude that the trial court properly determi ned that the prosecution abused it s discretion by faili ng to consider all of the relevant factors before denying pretrial diversion. W e also conclude that the Court of Cri minal Appeals erred in remandi ng the case to allow the prosecutor an opportunity to correct these deficiencies during an evidentia ry hearing. Accordingl

y, we reverse the Court of Criminal Appeals ’ judgment and reinstate the judgment of the tri al court.

BACKGROUND The defendant, Carolyn C. Curr y, worked as an assi stant clerk for the City of McKenzie, Tennessee, from 1985 to 199 5. Over a two-y

ear period from July of 1993 to July of 1995, Curry embezzled over $27,000 from the City. She later w as indicted for theft of property v alued between $10,000 and $60,000.

Curry applied for pretrial diversion. According to her application, she was a divorced, 34-year-

old mother of three children, ag es 19, 13, and 8. Curry h ad graduated from college w ith honors in 1983, and she ser ved in the Tennessee National Guard from 1983 to 1990, w hen she was honorably di scharged. She was an active member of her church and numerous charitable and community-3-

organizations incl uding the United Way, United Neig hbors, Concerned Citiz ens, and youth softball. Numerous le tters included with her

application attested to her charitable and community in volvement.

Curry had no prior arrests or convictions. She cooperated with authorities in this case when her acti ons were discovere d, admitting that she took money for family and living expenses and proposing a restitution program. She stated that: “I sincerely regret

my actions and regret the shame that my actions hav e brought to bear on myself and my family .”

In denying the applicati on for pretrial divers ion, the prosecutor, in a written response, gave the following reasons:

We are in receipt of your application for pre-trial diversion . . . . We have carefully reviewed the application and the attached letters.

. . . During a period of approx imately two year

s, from July 1, 1993, through July 11, 1995, approximately $27,368.73 in city funds were embezzled by her. This was not a one time embezz lement or theft, but a complicated, well-thought out criminal scheme to take money from the City of McKenz ie.

. . . We have considered the def endant’s past history and her conduct for two ye ars in defrauding the City of McKenzie. This was

a calculated criminal s cheme that took planning and thought. I t manifests a criminal intent for a long period of time and not something that happened at once. We cannot believe that it would be in the best interests of the public, the defendant, and justice to overlook a criminal s

cheme of this proportion and gr ant pre-trial divers ion . . . .
Curry sought rev

iew of the prosecutor’s decision by filing a petition for writ of certiorari in the tri al court. After hearing ar gument of counsel, the trial c ourt found2 The transcri pts indi cate that the tri al court i niti ally voiced i ts concern that the outcome be consistent

with an unr

elated embezzl ement case in which di version had been granted. The cour t lat er clarified, how ever, that it wa s applying th e contro lling standa rds to the f acts in this c ase. -4- that diversion had been denie d solely based upon the cir cumstances of the offense, specifically, the tw

o-year duration, and rul ed:

After considering the Appli cation for Pre-Trial Diversion of the Defendant, the l etter response from the office of the District Attorney General . . ., and arguments of counsel, the Court found that the Of fice of the District Attorney General had abused i ts discretion in denyi ng pre-trial divers ion and that the Defendant should be placed on pre-trial div

ersion. . . .

The trial court denied the State ’s motion to reconsider but granted a motion for interlocutory appeal. 2 The Court of Criminal Appeals agreed that the response denying pretrial di

version did not sufficientl y state the relevant fact ors which had been considered by the prosecutor, yet further held:

[T]he trial court should sc hedule an evidentiary h earing and allow the distric

t attorney general to t

estify in order to fill in the gaps left by the letter. Only in thi s way can the trial court have assur

ances that it is consider ing the same evidence considered by the prosecutor in his or her decision to deny pretrial diversion. Only in this way can it determine whether the prosec utor abused his or her discretion in denying

diversion.

We granted the defendant’s application for permiss ion to appeal to review the sufficiency of the prosecutor’s written denial of div

ersion and the question of permitting the prosecutor to correct its deficiencies by testifying in an evidentiary hearing.

ANAL YSIS The pret rial divers ion progra m, draft ed and en acted by t he Legisla ture, all ows the District Attorney

General to suspend a prosecuti on against a qualified defendant for a period of up to two year s. Tenn. Code Ann. § 40-15-105(a) (1)(A)(1997 & Supp. 1998). A qualified defendant pur suant to the statute is one w ho has not-5-

previously been gr

anted diversion and does not have a prior misdemeanor convictio n for which confine ment was se rved or a pri or felon y convictio n within a f ive year period after completing the sentence or probationary period for the conviction

. Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(b) (Supp. 1998). The of fense for which diversion is sought m ay notbe a class A felony, a cla ss B felony, a sexual offense, driving under the influence, or vehicular ass ault. Tenn. Code Ann. § 40-15- 105(a)(1)(B)(i)(c) (Supp. 1998).

Any grant of diversi on must be conditioned on one or more of the following conditions: that the defendant not commit any criminal offense; that the defendant refrain from activities, conduct, or associations r elated to the charge; that the defendant receive rehabilita tive treatment, counseling and education; that the defendant make restitution to the v ictim; that the defendant pay cour t costs and the costs of the diversion; and that the defendant abide by any othe r terms or conditions as may be agreed upon. Tenn. Cod e Ann. § 40-15-105(a)(2)(A )-(H) (1997 & Supp. 1998). If the defendant violates a t erm or condition, the prosecution may terminate diversion and resume the c riminal prosecution. Tenn. C ode Ann. § 40-15-105(d) (1997 & Supp. 1998).

One who is statutoril

y eligible is not presumptively entitl ed to diversion. Instead, whether to grant pretrial diversion to a qualified defendant who is statutorily eligible is a determin ation that lies in the disc retion of the district attor ney general. State v. Pinkham , 955 S.W.2d 956 (Tenn. 1997). The relevant consi derations for the prosecutor are as follow s: When deciding whether to enter into a memor andum of understanding under the pretrial div

ersion statute a prosecutor should focus on the defendant’s amenability to cor rection. Any factors w

hich tend to accurately

reflect wh ether a part icular defen dant will or will not become a repeat offender should be considered. Such factors must, of course, be clearly articul able and stated in the record i n order that meaningful appellate review may be had. Among the factors to be considered in addition to the circumstances of the off ense are the defendant’s crimin al reco rd, soc ial his tory, the phys ical an d mental conditi on of a defendant where appropriate, and the likelihood that pretri al diversion3 The dissent, quo ting onl y the l ast sentence of this passage f rom Pinkham , concludes t hat “potenti al for r

ehabilitation ” is not a “factor” that must be cl early articul ated and stat ed in the r

ecord by th e prosecutor. This conclusi on is simply at odds wit h the language in Pinkham whe n rea d in its e ntirety.

-6- will serve the ends of justice and the best interest of both the public and the defendant.

Id. at 959-60 (quotin g State v. Hammersley , 650 S.W.2d 352, 35 5 (Tenn. 1983)). 3

If the district attorney general denies pretrial diversion, the denial must be in writing and must inc

lude “an enumeration of the evidenc e that was considered and a discussion of the factors considered and weight accorded each. ” Pinkham , 955 S.W.2d at 960. This “requirement entails mor e than an abstract statement in the record that the district attorney general has considered these factors.” State v. Herron , 767 S.W.2d 151, 15 6 (Tenn. 1989). Instead, the factors considered “must be clearly articulable and stated in the record. . . .” Id. ; see also State v. Washington , 866 S.W.2d 950 (Tenn. 1993). That a defendant, obviously , bears the burden of demonstrating suitability for diversion does not relieve the prosecutor’s obligation to examine al l of the relevant factors and to set forth the required findings. E.g. , Pinkham , 955 S.W.2d at 960.

The prosecutor’s response must be in writing. As the Court of Criminal Appeals has observed, there are at least three reasons for requiring a w ritten response:

First, the statement woul d compel the prosecutor to thin k

about and justify his denial in terms of the applicable standards. Second, the statement of rea sons would define the area of controversy at the evidentiary hea ring. Finally, the statement of rea sons would restrict

the prosecutor to a particular rationale and insure that the prosecutor would offer no new reasons at the evidentiary hearing.

State v. B rown , 7 00

S. W.2 d 5 68 , 5 70

(Ten n. Cr im . A pp . 1 98 5) (q uoti ngSt ev en W. Feldman, The Tennessee Pretrial Div ersion Act: A Practitio ner’s Guide , 13 Mem. St. U. L. Rev. 285, 302 n.106 (1983)). The prosecutor’s written response must also-7-

identify any factual dispute s between the evidence r elied upon and the application filed by the defendant. Id.

If the application for pretrial diversion is denied, the defendant may appeal by petitioning the trial c

ourt for a writ of certi orari. Tenn. Code Ann. § 40-15- 105(b)(3) (1997 & Supp. 1998). The only evidence that may be considered by the trial court is the evidence that was c onsidered by the distri ct attorney general. State v. Winsett , 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The trial court may conduct a hearing only to resol

ve any factual disputes r aised by the prosecutor or the defendant concerning the applicat ion, but not to hear additional evidence that was not considered by the pros ecutor. See Pinkham , 955 S.W.2d at 960.

The action of the prosecutor is pr esumptively correc

t, and it is subject to review by the trial court only for an abuse of discretion. The record in this regard must show an absence of any sub stantial evidence to suppor t the refusal of the district attorney g eneral to enter into a memorandum of under standing before a reviewing cour

t can find an abuse of discretion. The appellate court must determine whether the trial cour

t’s decision is support

ed by a preponderance of the evi dence. Id.

The State contends that the trial c ourt improperly substi

tuted its decision for that of the prosecutor who, after considering all of the r elevant factors, denied diversion because of the ser iousness of the offense and the need for deterrenc e. The defendant maintains the trial cour t properly found an abuse of discr etion in that the prosecutor failed to consi der her favorable social history and amenability to correction. She also arg ues that the prosecutor is not entitled to testify at an evidentiary hearing

to correct the deficiencies

.
Our review, like that of the lower courts, indicates that the prosecutor’s primary consideration in the written denial o f diversion was the circumstances of the4 The dissent ci tes severalCourt of Cri minal Appeals’ opinions, some unpublished, f or the propositi on that t he circumstances of t he offense may alone justif y the deni al of di version. Although t hese cases neces sarily involve ca se-by-ca se dete rmina tions, they do not nega te the pros ecution’s obligation to consider al l rele

vant factor

s, incl uding those f

actors that

pertain to a defendant ’s potent ial fo r rehabilitation. E.g. , Pinkham , 955 S.W .2d at 959 ; Washington , 866 S.W .2d at 951 ; Herron , 767 S.W.2d at 156; State v. Lutry , 938 S.W .2d 431, 4 33 (Te nn. Crim . App. 199 6); State v. Carr , 861 S.W.2d 850, 858 (Tenn. Crim. App . 1993). -8- offense, specifically, the amount of money taken and the duration of the crimi nal activity. The denial

letter stated that diver

sion was not “in the bes t interest of the public,” which, although imprecise, arguabl y includes deterrence. Although the prosecutor asserts that he had “carefully revi ewed the application and the a ttached letters,” the denial does no t discuss the defendant’s favorab le social history, lack of a criminal record, and potential for rehabilitation. Moreover, assuming these essential factors were, in fact, considered, there is no explanation as to ho w much weight they we re afforded and no rationale as to w hy they were outw

eighed by the other factors in denying diversion. E.g. , Herron , 767 S.W.2d at 156.

The State argues, and the dissent writes, that the seriousness of the offense itself may justify a deni al of diversion. A review of the case law reveals, however, that the circum stances

of the offe nse and t he need fo r deter rence ma y alone justify a denial of diversion, but only if all of the relev ant factors have been consider ed as well

. E.g. , Washington , 866 S.W.2d at 951 (“circumstances of the case and the need for deterrence may be consi dered as two of the many factors , [but] they cannot be given control ling weight unles s they are of such overw helming significance that they . . . outweigh all othe r factors”). The facts and cir cumstances of nearly all criminal

offenses are by definition seri ous; only by analy zing all of the relevant factors, includ ing those favorable to the de fendant, can appropriate candidates for this legis lative largess be i dentified in a manner consistent w ith the purpose of the pretrial div ersion act. Herron , 767 S.W.2d at 156. 4

In Pinkham , for instance, the defendant was c harged with falsely

representing himself as a lawyer, i mpersonating a licensed pr ofessional, and aggravat ed perjury. The denial of diversion emphasiz ed the circumstances of the offense, the los ses-9-

sustained by the vict im, and the “systematic and continuing criminal ac tivity,” but also gave extensive consideration to the other relevant factors:

In making this decision t o reject the defendant’s diver sion application, I have consi dered that [the defendant] is a 50 year old man with no c riminal record. I hav e considered his exemplary soci al history. I have considered that [the defendant] appears to be a leader in hi s community, as evidenced by the charac ter and reference letters from lawyers, teachers , professors, ministers, doc tors, et al. I have considered all of the par ameters of [the defendant’s] social, family, per sonal, educational and professional background. I have weighed all

those factors in deciding whether the interests of justice wo uld be served best by p lacing [the defendant] on diversion. I hav e concluded that the interests of the public substantially outweig h the interests of the defendant. Since [the def endant] is a highly educated person who holds a l aw degree, [the defendant] knew that his conduct w as unlawful and unethical. Unquestionably, [the defendant] made a deliberate choice to vi olate the law. Havi ng violated the criminal laws . . . , [the defendant] made an unconscionable decision to engage in a continual pattern of deception and dishonesty.

Id. at 959. In affirming the denial of diversion, this Court observed that the district attorney general extensively discussed the relevant factors, identified the evidence considered, and set forth the weight afforded to each factor as well as the rationale for his conclusion. Id. at 961.

In contrast, the defendant in Herron , a 24-year-old woman with no prior criminal record, was charged with two counts of larceny by trick, one offense involving $5000 and the other involving $6000. The prosecutor’s denial of pretrial diversion was based

primarily on the cir

cumstances of the “contrived,deliberate” offenses and the need to deter such offenses. Alt hough the trial court deni ed the defendant’s petition for certiora ri, the Court of Criminal Appeals concluded that the district attorney general failed to consider other relevant factors that were favorable to the defendant.-10- This Court agreed with the intermediate court’s d etermination that both the prosecutor and the trial c ourt failed to consider “that defendant did not have any criminal record, her s

ocial history, her p hysical and mental conditi on, including her educational background, her employment history as w ell as the stability

and continued support of her family.” Id. at 155. Moreover, the Court once again stressed that “if the district attorney general bases his decision on less than the fu ll complement of factors . . . he must, f or the record, state why he considers that those he relies on outweigh the others submitted for his consideration.” Id. at 156.

In this case, the prosecutor ’s denial letter concentr ated solely upon the circumstances of the offense and, arguabl y, a veiled consider

ation of deterrence. There was no apparent consider ation given to the defendant’s lack of a criminal record, favorable social history, and obvious amenability to correction. Moreover, the prosecutor did not arti culate or state why those factors that were cons idered, i.e., seriousness of the offense and deter rence, necessarily out

weighed the other relevant factors. The evi dence presented a close case on the diversion question ; however, the failure by the prosecutor to consider and articulate all of the rel evant factors constitutes an abuse of dis cretion. We therefore agree with the c onclusion of the lower courts.

We agree with the dissent’s observ ations that the offenses committed by the defendant were serious and aggravated in nature, and further, tha t the prosecutor’s findings in this regard were supported by the record. Where we diff er, however, is in our conclusion that the prosecutor’s denial did not show that all relevant factors were considered in deny ing diversion, in particular, those factors r elevant to the amenability for rehabilit ation. The dissent finds that there were no favorable factors on the defendant’s behalf, a conclusion w ith which we disag ree based on this 34- year-old divorced mother of three’s history of church, community, and charitable activity and otherw

ise squeaky clean r

ecord until this offense, as show n by the evidence in the record.-11- Moreover, the dissent s trains to conclude that the ev idence regarding the defendant’s background was unfavorable and that her potential for rehabilitation was minimal simply by looking only t o the circumstances and time sp an of the offense. Under such an analysis , in which the facts and ci rcumstances are given conclusive weig ht against a defendant’s potential for correction, rare is

the defendant who would qualify for pretrial diver sion.

Finally, we also conclude that the Court of Criminal Appeals erred in remanding the case for an evidentiary hearing in order for the prosecutor to “fill in the gaps” and correct any deficiencies in the record.First, the procedure adopt ed by the Court of Criminal Appeals decreases the importance of the written response and increases the risk tha t new reasons or consi derations will be i ntroduced during the hearing without noti ce to the defendant. Second, the standards of review governing certiorari proceedings require the trial court to consider only that which has already been considere d by the prosecutor. See Winsett , 882 S.W.2d at 809 (evidence considered at hearing exceeded certi orari review) . Accordingly, as discussed above, an evi dentiary hearing may be held only to clarify

factual disputes in the record, and may not be held to allow the prosecutor to discuss new or additional considerations r egarding the denial of div ersion.

CONCLUSION We agree with the trial court that the prosecutor failed to consi der all of the relevant factors and, therefore, abused his discretion in de nying the defendant’s application for pretrial di version. We further conclude that the Cour t of Criminal Appeals erred in remanding the case for a hearing. Acco rdingly, the judg ment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated. Costs of appeal ar e taxed to the State of Tennessee.

________________________________ RILEY ANDERSON, CHIEF JUSTICE-12-

CONCUR: Drowota and Birch, JJ.

DISSENT: Holder, J. - see separate Dissenting Opinion