### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 29, 2003 Session
STATE OF TENNESSEE v. RH ONDA CLOER
Interlocutory Appeal from the Criminal Court for P olk County No. 00-065 R. Steven Bebb, Judge

No. E2002-02252-CCA-R9-CD September 4, 2003

The Polk County

Grand Jury

indicted the Defe ndant for th ree counts of vehicular homicide, four counts of aggravated a ssault, and twelve counts of failure to stop a school bus at a railroad cross ing. The Defendant filed an application for pretria l diversion, and the trial court ordered that a pretrial diversion report b e comple te d. Up on completion of the report, the Assistant District Attorney General denied the application, and the Def endant appealed

to the District Attorney

General, who also denied the application. The trial court grante d a writ of certiorari and, thereaf ter, affirmed the District Attorney Gene

ral’s decision. The Defendant sought, and was granted, permission to take
an interlocutory appe al pursuant to Rule 9 of the Tennessee Rules of Ap pellate Pro cedu re. We granted the Defendant’s application for interlocutory review to address theDefendant’s contention that the State abusedits discretion by deny ing her appli catio n for p retri al div ersio n. Aft er a tho rough consider ation of th

e recor d, we af firm the j udgmen

t of the tr ial cour t. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID H. W EL LES an d J ERRY L. S MITH , JJ., joined.
Conrad Finnell, Cleveland, Tennessee, for the appe llant, Rhonda Cloer.

Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General ; Kath y D. Aslinger, Assistant Attorney Gene ral; Jerry N. Estes, Distri ct Atto rney Ge neral; and Sandra N. Donaghy , Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION I. Facts

This case ar

ises from a trag ic set of circumsta nces. The Defendant, Rhonda Cloer, was driving a school busin Polk County when it collided with a freig ht train, killing three children and seriously injuring four othe rs. The Defendant was indicted for three counts of vehicular homicide,-2-

four counts of aggr avated a ssault, and twelv e counts of violating Tennessee Code Annotated section 55-8-147, whichrequire s a school bus drive r to come to a stop between fifteen and fifty feet from the nearest rail of a railroad crossing

. The Defend ant filed

an applic ation for

pretria l diversio n, and the

trial cou rt order ed that a pretrial diversion report

be completed. After reviewing the pr etrial diversion report, theDefendant’s application for pre

trial dive rsion, and the Ten

nessee H ighway Patrol fil e, an Ass i stant Dist rict Attorney General denied the Defendant’s r equest for diversion. In its letter deny ing pretrial diversion, the prosecution stated:

The loss of life of the three children killed as a result of the cr ash, and the serious injuries suffer

ed by the other s, their f

amilies, a nd allinvolved, is tragic. Alone, th is
serves as a basi s to deny

diversio n. When coupled with the fact tha

t [the Def endant] flippantl y disregarded the safety

of the childr en in her care by repeatedly

and reckle ssly cross[ing ] the track without st opping b egets a question of when would a collision occur rather than if it would occur.

The prosec ution not ed that, although she did not have any prior convictions, the Defendant was arrested for aggravate d assault and simple battery on November 8, 1986, and for forgery

on March 5, 1994. The prosecution stated that “the contact [the Defendant] has had with the law, a nd th e nature of that contact, suggests an inability to pract i ce good citizenship in the future without the deterrent effect of criminal prosecution.”

The prosecu

tion noted that some

of the fa ctors tha t it considered favored judicial diversion. The Defendant

completed high school and had no problems as a juvenile. Fur ther, the Defendant married her cur rent husb and in 199 4, and the y ha ve a seve n-y ear-ol d daugh

ter who w as injure d in the bus accident. The Defendant had bee n employed

relatively consistently

from 1995 until the da

te of the accident and she was currently working at

Mohawk I

ndustrie s. In

the Defe ndant’s r eport to the Board of Probation and Parole, she characterized her

physical condition as “g ood” and her mental condition as “fair.”

While some factors considered by the prosecution favored judicial diversion, the prosecution maintained that pretrial diversion should be denied based on the deterr ent effect. It state d that

the Defendant

“shows no remorse in her statements and has not acce pted any re sp onsibility for her conduct.” In

addi tion, the prose cutio n note d tha t “[t ]he State also

has an int

erest in d eterring all others having a position of trust in the care an d tran sport of children, from reckless or wanton disregard in their duties.” “[The Defendant ’s] stateme nts and co nduct sug gest an unwillingness to apprec iateand accept personal responsibility for the deaths and injuries. Instea d, she blames others and claims to b e suffe

ring fr om what ap

pears to be self-diagnosed ‘traumatic amnesia.’ ” The prosecution noted, “By vir tue of videotap ed evide

nce, it c an be see

n that [the D efenda

nt] failed to stop at the railroad crossing on ten separa te dates between March 13 and Marc h 28, 2000.” T h e prosecution also noted that the Tennessee Highway Patrol and the victims expr essed opp osition to-3-

the grant of pretrial diversion and that the Def endant was unable to pay

restitution. Therefore, the Assistant District Attorney Gene ral denied the Defendant’s application for pr etrial diversion.
Following Assistant District Attorney Genera l’s denia l, appar ently pursuant to the procedure
us ed in the Tenth Judicial District, the Defendant appealed this decision to the District Attorney Genera l. On appeal, the District Attorney General considere d t he original letter of denial, the Defendant’s application and additional information she submitted, the Tennessee Highway Patrol’s investigatory

report ( “THP Re port”) and the National Transportation and Safety Board Report (“NTSB Report”). From

these, the District Attorney General indicated that the original denial of the Defendant’s pretrial diversion applicationwas based on the following: (1) the nature and circumstances of the offense ; (2) the inability of the De fendant to practice good citizenship without th e deterrent effect of criminal prosecution based upon prior episodes with the criminal justice sys tem; (3) the Defendant’s phy sical and mental condition, which included no m en tion of having “trauma tic amnesia

” in any of her me dical re cords unt il the fil ing of her application for pre-trial divers ion; (4) the St ate’s interest in deterring others having a position of trust in the care and transport of children from the reckless and wanton disreg ard of their duties; (5) the fact tha t the offenses were not committed impulsively beca use the De f

endant failed to stop at the railroad crossing on ten separate occasions between Mar ch 13, 2000 and March

28, 2000; (6) a conclusion that the Defe ndant would be elig

ible for p robation under the sentenc ing stat

utes; and (7) the in ability of the Defendant to m ake res titu tion and the strong opposition of the victims’ families and the prosecuting agency

to pre-trial diversion.

In addition to the se facto rs, the District Attorney Ge neral addressed several additional argume nts th at t he D efe nda nt mad e on app eal . In her appeal, the Defendant contended that she w as remorse ful, and the D istrict At

torney Genera l agre ed, stating that su ch remor se weig hed in th e Defendant’s favor. However, the District Attorney Gene

ral concluded that

“[a]ny remorse fulness the [D]efendant may have is out-we ighed by her social history, a demonstrated ina bility to undertake and carry through on the or di na ry o bligations of society, the likeliness that she would be a repeat offender and a pre sent inab ility

and incentive to act

within the law without the deterrent effect of a public trial.” To support this opinion, the District Attorne y General noted that, although the Defendant

claimed the parent s kn ew she loved the victims and some invited her to memorial service s, “the overwhelming information in the file indicates that both victims’ family member s and investigating officers have strong fee lings that pretrial diversion shou ld not be granted . . . .” Further, in rega

rd to the D efenda

nt’s so cia l history, the District Attorney General stated that the Defendant

was arrested

for shooting a prior boy

friend. Additionally, the District Attorney Gene

ral highlighted

the videotaped evidence that showed the Defe ndant repeatedly

failing to stop at the railroad crossing.

The District A

tt or ney Genera l also add ressed, but was no t persua ded by , the Def

endants contention that she repressed the events surrounding the off enses due to “traumatic amnesia.” The District Attorney Gene

ral noted that the Defendant’s suppression of events was not

indicate d until she filed her application for pre-trial diversion in which she stated tha t she had this disorder. He stated that the emergency room records indicated that the Defendant had no confus ion or-4-

disorie nt ation at the hospital. Further, the Defendant told an investiga tor a short time after the accident that she came to a complete stop, looked bo th way s, opene d and clos ed the doo r, looked in the rearview mirror, and then looked both wa ys again. Accord ing to the prosecu tion, the N

TSB Report concluded that if the Defendant had stopped at least fif teen feet from

the nearest rail, turned off her radio, and

opened the door and window, she would have seen and hear d the approaching train. The NTSB report determined “that the probable cause of the collision wa s the school bus driver’s failure to stop before traversing the r ailroad/highwa

y cro ssing.” The District Attorney General stated, “The overwhelming evidence in the file indicates the [D]ef e ndant has not been truthful about the events leading to t he offe nse or her ‘traumatic amnesia,’ and that she ha s failed to accept full responsibility for her actions.”
Next, the D istr ict Attorney Gene ral addressed the Defendant’s conte ntion that she did not have the requisite state of mind to be criminally culpable by stating that

a person commits an

offense who acts intentionally, know in gl y, reck lessly , or with c

riminal ne glige

nce. The Defend ant was “ well
awareof the la

w requir ing her to st op a scho ol bus, open the door and look as well as listen for
onc oming trains.” However, the Defendant intentionally drove the bus over the tracks wi thou t stop ping, look i ng, and

listening for an on

coming t rain; the refore , she had

a crimina

lly- culpable mental state.

Las tl y, the District Attorney Ge neral addressed

the Defe ndant’s a ssertion t

hat this ca se is a proper case for a jury

in acivil trial to determine the is sue s of neg li gen ce a nd c om par ati ve f aul t. In dismissing this argument, the District Attorney Gene

ral stated that although the Defendant claims that the c rossi ng was “blind and unprotected,” this is not supported by the weight of information containedin the file. The District Attorney G eneral noted tha

t “[d]ocume

ntation in t

he file a nd [his] personal observations further indicate there were cross bucks and ad equat e signa ge in advance of the crossing to warn any vehicle approaching the

crossing.” Accordingly , the District Attorney Ge neral denied the Defendant’s appeal for pr e-trial diversion.

The Defendant filed a petition to the trial court for a wr it of cer tiorari, alleging that the denial of pretrial diversion by the

District Attorney Gene

ral was an abuse of discretion. Thereafter, the trial court ruled that the District

Attorney Genera l did not abuse his discretion in denying the Defendant’s application for pre

trial dive rsion. The

Defend ant soug

ht interlo cutory

appeal, which the trial court granted. We accepted the Defend ant’s request for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure to address the Def endant’s contention that

the State abused its discretion by deny

ing her application for pretrial diversion.

II. Analysis The Defendant argues tha tthe trial court er

red by ruling t hat the pr osecutio n did not abuse its discretion by

denying her pretrial diversion. Pretrial diversion allows the district attorney general to suspend p

rosecut ion for a perio d of up to two ye ars ag ainst a de fendant who meetscertain statutory requirements. See

Ten n. C ode Ann . § 4 0-1 5-1 05( a)( 1)( A). In order to qualify for pr

etrial diversion, the defendant must not have pre viousl y been gra nted dive rsion unde

r this stat ute; must-5-

nothave a prior misdemeanor conviction for which a se ntence of confinement was served or a prior felony conviction within a five-ye ar period after completing the sentence or

probationary pe

riod for such prior conviction; and must not be seeking diversion for a Class A or B f elony, a sexual

offense, driving under the influence, or vehicular assault. Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)( a)-(c). Such eligibility does not presumptively entitle a defendant to pre trial diver sion, but rather places such a decisi on within th

e discre tion of the

dis trict attor ney

so long a s the def

endant isstatutori ly qualified. State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999).

It is the defendant’s duty

to demonstrate suitability for pretria l diversion. Statev. Winsett , 882 S.W.2d 806, 809- 10 (Tenn . Crim. App . 1993). H owever , this requirement does not relieve the prosecu tor of his o

r her dut y to consider and arti culate

all the relevant factors. Curry , 988 S.W.2d at 157. The district attorney is required to consider all relevant factors when determining whether to grant pretrial diversion. State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined the cri teria tha t s hould be c onsidere d by the prosecutor in granting or deny

ing pretrial diversion:

When deciding whether to enter i nto a memorandum of understanding under the pretrial diversion statute a prosecutor

should foc

us on the de

fendant ’s amena

bility to correction. Any factors which tend to accurately re fl ect whether a particular defendant will or will not beco me a rep eat o ffe nder should be considered. Such factors mu st, of cou

rse, be c learly

articula ble and st ated in the recor

d in order th a t meaningful appel late r eview ma y be had. Amon g the fa

ctors to b e conside

red in addition to the circumstances of the offense are the defend ant’ s criminal record, social history, the phy sical and mental condition of a defendant where appropria te, and the likeli

hood that p

retrial diversi on will serv e the end s of justic e and the best interest of both the public and the defendant.
State v. Hammersley , 650 S.W.2d 3 52, 355 (T enn. 1983 ); see also Curry , 988 S.W.2d at 157.

Where pretrial diversion is denied by the dis trict attorney, the f actors and evidence considered

in making the decision must be clearly set forth in writing along with the weight ac corded to each factor. Statev. Pinkham , 955 S.W.2d 9 56, 960 (T enn. 1997 ); Winsett , 882 S.W.2d at 810. The factors must be “clearly articulable and stated in the record.” Hammersley , 650 S.W.2d at 355. Failure to conside

r and ar ticulate all of the relevant factors constitutes an abuse of discretion. See Curry , 988 S.W.2d at 157-58.
A defendant who has been denied pretr ial diversion by

the distri ct attorney

has the r ight 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 a district attorney ’s decision to grant or deny pretrial diversion is presumptively

correct, a trial court

may overr

ule a district attorney’ s denial of pretrial diversion where there has been an abuse of discretion See Hammersley , 650 S .W.2 d at 35 6. The trial judge cannot simply 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-6-

must lack any substa ntial ev idence to support the denial of pretrial diversion. Curry , 988 S.W.2d at 158.

The legislature vested the authority to prosecute a

case or divert it with the prosecutor rather than the court. See Tenn. Cod e Ann. § 40 -15-105; Carr , 861 S.W.2d at 858. The trial court “must notre-weigh the evidence, but must consider w hether the district attorney general has weighed and considered

all of the

releva nt facto rs and wh

ether there is su

b stantial e

vidence in the re cord to support the district attorney g eneral’s reasons for deny ing diversion.” State v. Yancey , 69 S.W.3d 553, 55 9 (Tenn. 2002) . On appeal, this Court is “bound by the fa ctual findings made by

the trial court unless the evidence preponderates ag ainst them .” State v. B ell , 69 S.W.3d 171, 177 (Tenn. 2002). An appellate court should apply the preponderance of

the evidence standard of review of the trial court ’s deci sion rega rding a pros ecutor’s abuse of discretion. Curry , 988 S.W.2d at 158. “When the fac ts are un disputed, the under lying iss ue tha t this [C]ourt must determine on appeal remains whether, as a matter of law, the prosecutor abused his or he r discretion in denying

pretrial diversion.” State v. Carriger , No. E2000-00823-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 966, at *13 (Tenn. Crim. App. Dec. 20, 2000).

We conclude

that the p rosecut ion clea rly articula ted in the letter itsreasons for deny ing the Defendant

pretrial diversion, and the reasons articulated were r elevant and supported

by substantial evidence in the re cord. The prosec ution note d and con sidered severa l factor s in t he Defendant’s favor, however, it ultimately denied the Defendant pretrial diversion. The prosecu tion clear ly articulated

the factors that heconsidered in a lengthy and detailed letter. Because those factors wer e relevant and supported by substantial evidence in the rec ord, we c onclude t hat ther e was no a

buse of prosecutorial discretion. Therefore, the trial court properly ruled that the prosecutor’s decision to deny pretria

l diversion was not an abuse of prosecutorial discretion.
Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE