### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ma y 9, 200 6 S es sio n
STATE OF TENNESS EE v . WI LLI AM EARL CHERRY

Direc t Appeal from the Circ uit Court for Willi am son Coun ty No. I-CR02905 D onald P . Harris, Judge

No. M2005- 02327-CCA -R9-C O - F iled Jul y 26, 2006

The de fenda nt, Wi lliam Earl Cherry , was indicted for three counts of ag g ravated assault and thr ee counts of re ckless enda ng erme nt. He filed an application for pretrial diversion, and the State denied his re qu e st. He the n fi le d a pe tit ion fo r w ri t of c e rt ior ari , a ndthe tr ia l c ou rt or de re d th a t th e Sta te enter into a memorandum of unde rstanding . The S tate filed a R ule 9 appeal. Following our re view,
we re ve rs e the ord er of

the tr ia l c ou rt

a ndre ma ndfo r f

urthe r p ro c e e din g s c on sis te nt w ith thi s opinion.
Tenn. R. App . P . 9 Interlocutor y Appeal; Jud gm ent of the Circuit Court Reve rsed and Rem anded

A L AN E. G L EN N , J ., delivere d the opi nion of t he court, in which G AR Y R. W ADE , P.J ., and J ER R Y L. S MI TH , J ., joined.

Pa ul G. Sum me rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Ma rk A. F ulk s, As sis ta nt A tto rn e y Ge ne ra l; Ronald L . Davis, District Attorney Gene ral; and B rade n H. B ou cek, Assistant District Attorney Gene ral, for

the appe llant, State of Tenne ssee.

J o s e p h D

. B a u g h a n d M ark L

. P u r ye ar , F r a n k l i n , T e n n e s s e e , f o r t h e ap p e l l e e , W i l l i a mE ar l C h e rr y.

OP IN ION

F AC TS

The de fenda nt was ar

rested a s the result o f h i s fi ri ng shots at a vehicle , with three y oung women inside, which ha d turned into his drivewa y . The leng thy l et t er o f t he District Attorne y Ge ne ra l se t ou t th e fa c ts o f the of fe ns e s:

Th e c ir c ums ta nc e s o f this of fen se are e xtre me ly

se ri ou s a ndfa c tor

he a vil y ag ainst a g rant of dive rsio n . The e vidence is larg ely undisputed. A ca

r with three teena g e g irls on the way

to a party

drove into the de fendan t ’s d ri v ewa y when they2

beca me conf

used and low on g as. The de fenda nt awoke and, fea ring the g irls were vandals, got a pistol and rifle and then we nt outside to the car. T he def endant then shot the car

three times as it sped off of his p ro p er t y

. T h e g irls were on the phone with 911 who rec orded the terrif ied g irls as the def

endant shot at t heir c ar. Tw o bullet holes were found on the side of the ca r. Another was located in the ce nter of the re ar trun k. Whe n d e pu tie s d isp a tc he d to the sc e ne a tte mpt e d to take the fi re arm s from the de fe n d an t , he ver bally ref used bef ore attacking Deputy

Gary Luther. I cannot he lp but note that these victims we re y oung g irls w ho wer e lost, vulnerable, prese nted no threat and did nothing to provo k e t his attack other than have the

m i s f o r t u n e o f s t e e r i n g i n t o h i s d r i v e w a y.

B e c a us e a c ar pu lle d int o his drive way a t ni g ht, the de fe nd a nt a

rm e d h ims e lf with a handg un and a rifle. Rather than simplycall the police he soug ht out the car and opene d fire on it with the g irls inside. The 911 re cor d i n g o f t h e gi rls as the defe ndant fire d upon them provides chilli ng acc ess i nto their m oment of terr or. The defe ndant informed the deputies in his statements that he o rig ina lly intended on firing the rifle but it jammed for cing him to resort to the pi stol. Had this occur red the final shot f ired by the defe ndant could have pie rce d the ca r and struc k one or more of the g irls. I n spite of the def

endant a nd but for fic kle luck ther e mig ht have be en serious bodily injury or death. His de cision to scuffle w ith a deputy who was inve stigating the c ri me on ly

e xac e rb a te s it s w ro ng fu lne ss.

Ac c o r d in g to th e d e f

e n d a n t h e w a s a tt e mp ti n g to s h o o t o u t th e ir tir es in an
e ff ort to su bd ue the m be c a us e he tho ug ht the y we re tr e sp a ssi ng va nd a ls

. Th is is misguided f

rom the outset since [, in situations s uch as t hese,] the law doe s not countena nce the use of de adly forc e aga i n s t others, be they stranded motorists (as they in fac t were ) or e ven tre spassers ( as the de fenda nt errone ously assumed).

Mo re ov e r the ph oto g ra

ph s ta ke n o f the c ar c on ta ine d in the c a se fi le be lie thi s
c la im i n p art . T he fi na l sh ot i s c e nte re d o n th e re ar t ru nk area of th e car. I t is difficult t o believe that this was fired at the t ires. This shot must have come a s the vic tim s’ c ar s pe d a way , a ny thr e a t wa s g on e a ndop po rtun ity to h it the tir e lon g pa st. I wi ll n ote tha

t onthe vid e ota

pe the de fe nd a nt i nf

orme d the o ffi cers that he wa s a “g ood shot [ who] shoots what he intends to shoot.” I f that is the ca se the final shot at least was not intende d for a tire. I n light of this, it is my opinion that the de fenda nt intended to do more tha n mere ly shoot out the tires. H i s at t ac k on Deputy Luther lik e w i s e s u g g e s t e d t h a tm o r e t h a n a m e r e l e g a l m i s u n d e r s t a n d i n g o f h o w h e c ou ld appre hend tre spassers f

ueled his ac tions. I

do not find that his mis taken a ssumptions mitigate his be havior.

As for othe r re levant conside rations , t h e S t at e’s letter noted the fa ct the def endant ha s no prior criminal rec ord, which “pre ponderates in his favor ” and that his “ flawle ss” social history was
acc orded g reat weig ht. As to whether it would be just for the defe ndant to be plac ed on pre trial3

div e rs ion , th e Sta te c on c lud e d th a t, b e c a us e of the natur e of the of fe ns e s a ndc on tin uin g pr ob le ms of one of the victims, “ it se ems excessively lenient to a llow the defe ndant [t o] ‘pr etend that nothing happene d’ by

leg ally obliterating out of exist ence any rec ord of the c rime.”

As to the de fe nd a nt’ s a me na bil ity to c or re c tio n a ndlik e lih oo d to reof fend , the Sta te
c on c lud e d th a t, a lth ou gh th e de fe nd a nt i s a “ mod e l c iti zen ,” it c a nn ot b e ru le d o ut that “ he wo uld reof fend unde r substantially

the same f

acts. ” The State expl ained this statement, saying that the defe ndant “ha s consistently stopped short of exhibi ting an understanding that he did not have a rig ht to f ir e a we apo n th a t ni g ht n o matte r w ho wa s in the c ar. ” As to this c on sid e ratio n, the Sta te
c on c lud e d th a t “ wh ile [the de fe nd a nt] doe s mak e state me nts of c on tr iti on , th e y

are un de rm ine d in larg e part by

his inabilit y

to appre ciate that his actions were unlawful wit h o ut qualification.” Add it io n a ll y , th e St a te o p in e d th a t th e d e f e n d a n t w a s n o t “ to ta ll y f

o r th r ig h t ab o u t th e f

a c ts of the offe nse”:

I n his statements t o the deputies the nig ht of the off ense, the defe ndant stated that he fired twic e an d o nly

at the tires. He maintained this even w hen the de tective informed him that there wer e thre e bullet holes in the car. Even in his statement of fac ts in his pretria l diversion application, he only acc ounts for two shots at the car, both in the tire are a. The photogra phs of t he car show that he must have f ired thre e times. This is no i dle discre pancy since it is the third shot that is in the m iddle of the
rea r trunk, nowhe re ne ar a

tire, and s u re t o have oc curr ed whe n the victims were flee ing in ter

ror of f of his prope rty

taking with them the defe ndant’s pur p o rted justification for the attack. That he continued to fire past the point of “justification” coupled with his persistent re fusal to ac knowledg e the t h i rd shot forc es the conclusion t hat t his attack wa s about more than just poor judg ment. His later attack on Deputy

Luther be speaks the sa me conc lusion.

F urthe r, the Sta te no te d that, a lth ou g h th e de fe nd a nt s ta te d th a t th e he a dli g hts on the vic tim s’
car wer e not turned on, the vi ctim who was driving a nd the def endant’ s wife sa id that the emer g ency f l a s h e r s w e r e o n , h i s w i f

e s t a t i n g f u r t h e r t h a ts h e m e n t i o n e d t h i s f

a c tt o t h e d e f

e n d a n t

. A c c o r d i n g l y, the Sta te pla c e d “ so me we ig ht” on thi s c on sid e ration, a lth ou g h n oti ng that “ the de fe nd a nt i s g ener ally of a n ex cee dingly

law abiding tempera ment who is unlikely to be conf

ronted by simil ar circ umstances.”

As fo r the be st inte re st of the pu bli c a nd the de fe nd a nt, the Sta te c on c lud e d th a t ne ith e r w ou ld be ser ved by

g ranting pretria l diversion, as explained in the letter:

Since the def

endant c hose to use a firea rm, an unintended outcome could ea silyhave been a fata l one. For

instance in this case it is qui te ea sy to imagine a bull et g oing astray and st riking one of the girls, espec ially g iven that the def endant f ired upon a n
err atically driven car full of terror -stricke n teena g ers a nd at least one of the shots was fired in ha

phazard fa shion as the ca r sped a way . I

am there fore mindful of the op po rtun ity

to s e nda me ssa g e to the po pu la tio n th a t one sh ou ld n ot r e so rt to the us e4

of potentially

lethal forc e unless one or another is threatene d with a potentially lethal threa t. Given the extensive media c overa g e that has a t t en d ed this case, it has the unique pot ential t o car

ry that messag e. See gene rally , State v. Hooper , 29 S.W .3d 1, 11 (Tenn. 2000) (“A fundame ntal require ment of dete rre nce is that other s know of the punishment rec eived” ).

The State’s le tter further set out that pre trial diversion wa s not in the best i ntere st of the def endant beca use, s h o u l d t h e same situation arise ag ain, the def endant “ is liable to respond in a similar fashion.”

The State c oncluded its letter by summarizing the re asons why the def en d an t was not
acc eptable f

or pre trial diversion:

I cannot a g ree to pretrial diver sion. This was a diff icult determination for

me. Th e de fe nd a nt’ s c ha

ra c te r andso c ia l/c ri min a l hi sto ry pr e po nd e rate a s st ro ng ly in h is favor as any candidate I have ever confr onted. Ultimately , howeve r, the fa cts of the offe nse we i gh heavily

as we ll. W hen couple d with the public need to de ter such ir r e s p o n s i b l e u s e o f f

i r e ar m s , t h e d e b t h e o w e s t h e p u b l i c f o r t h i s i n j u sti c e a nd my qualified conce rns about his amena bilitytowards c orre ction, the fa ctors in his favor
are overw helmed. As such his re quest for pretria l diversion is respec tfully denied.

At a hea ring on the petition, th e only witness prese nted by

the def endant wa s Detec tive Tameka Sanders, who w as employ ed by the Will iamson CountySheriff’ s Depa rtment and ha d been the lead inve stiga tor in the char g es ag ainst the defe ndant. The function of he r testimony appea red to be to a llow f

irst the defe ndant and then the State to g o throug h the results of her in v es t igation, pu tti ng the de fe nd a nt al te rn a te ly in a fl a tte ri ng a ndthe n u nf

la tte ri ng lig ht. Sin c e the tr ia l c ou rt did not identify any fac tual disputes which her testimony resolved and t he defenda nt does not assert on
app e a l th a t th is w a s th e c a se , w e wi ll n ot r e c ou nt i t.

Th e tr ia l c ou rt

ma de or a l f

ind ing s a ndc on c lus ion s in e xpla ini ng wh y the de fe nd a nt s ho uld be pla c e d in the pr e tr ia l di ve rs ion pr og ram:

The district attorne y

in this case has sa id that pretrial diver sion should be
re se rv e d f or e xce pti on a l app lic a nts in e xce pti on a l c a se s.

And I think somewhat I ag ree with that and would look to this particular c ase. And I think there’s no d i s pute either by the district attorney

or the de fense that
c e rt a inl y thi s is a n e xce pti on a l in div idu a l.
[The defe ndant] has never been accused of a cr ime. He’ s been a

succe ssful businessman appa

rently

. He has sever al letters of rec ommendation from influential people.5 I don’t know that I ’v e ever met or spoke n to [ the def endant], but I ’ve be en living in this community35 y ear s and I certainly kno w o f his reputation just being here in Fr anklin, and it ’s been g ood. Well, I say it’s good. It’s been outstanding , and I thi nk the dis tr ic t a tto rn e y

a g re e d w ith that.

I then turn to whethe r this is an ex ceptional case. I think the first observation that I have to make is that certa inly this is a potentially serious case. But it ’s also a
case that our leg isla ture ha s said that someone who’ s char g ed with this offense , ag g ravated assault, is elig ible for pr etrial diver sion.

So the fa c t th a t he ’s c ha

rg e d with a g g ra vate d ass a ult – in w hic h in thi s c a se it’ s c a us ing so meo ne to f e ar i mmi ne nt b od ily

inj ury by us e of a de a dly we apo n in th ree c ou nts wi th r e g ardto thr e e y ou ng wo me n – a nda lso wi th r e c kle ss
e nd a ng e rm e nt i n th a t he pla c e d a no the r p e rs on in f e ar o f d e a th o r s e ri ou sly

bo dil y injury rec klessly

with a dea dly

wea pon.

Whil e the y ’r e se ri ou s o ff

e ns e s the y are of

fe ns e s that ou r le g isl a tur e ha s said qualify for pretria l diversion. I also looked at the c harg es and f ind there’ s rea lly

no alleg ation that he intentionally tried to harm a ny one.

As corr ectly

pointed out, he ce rtain ly

c o u ld have ha rmed someone , but there’ s no evid e n c e o r n o c h ar g e th a t h e in te n ti o n a ll y trie d to h a r m s o me o n e

. H e ca used them to fea

r bodily injury by use of a deadly wea pon, and h e co u l d h ave ha rmed
someone.

This o b v io u s ly

is n o t a c a s e w h e r e s o me o n e s e ts o u t t o c o mm it a c r im inal of fe ns e . I su sp e c t th a t [th e de fe nd a nt] w ou ld p re fe r that the c ar did n’ t c ome up int o h is d r iv e w a y th a t e v e n in g , a n d th a t he h a d a p e a c e f u l e v e n in g a n d g o tt e n u p th e n e xt morning and g one about his business, but that’s not what happe ned.

Th e re ’s so me thi ng that trig g e re d th is w ho le thi ng a ndc a us e d h im t o ha ve to make de cisions – and I ’m not talking a bout the appropriateness of his decisions – but
c a us e d h im t o ma

ke de c isi on s u nd e r l e ss tha n id e a l c ir c ums ta nc e s.

So it’s not a case wher e som eone goe s out to commit an offe nse. As I said, I ’m not in this case ruling upon the appr opriatene ss of [the defenda nt’s] actions one way or the other

. I think certainly , as has been alluded to by the district attorney , any time someone shoots at or ar ound a mer e tr es p as s er on his prope rty , that’s inappropriate.
[Th e de fe nd a nt] i nd ic a te s tha t he wa s f e arf ul f or his pr op e rt y

a ndhis sa fe ty and his wife’ s safe ty . And there ’s n o rea son to doubt that he was to some deg ree fe arf ul o f t ho se situa tio ns

.6 So I don’t pass on his a

ppropriate ness. But I think the mistake that may have been made by the district attorney in this ca se is the fa ct that his decision was ba sed up on the ou tc ome of

the fa c ts a s th e y dev elo ped a ft e r [the de fe nd a nt] t oo k h is
a c tio ns

.
An d w ha t I

me a n b y that is if thi s v e hic le ha d –

if a ll the fa c ts w e re the sa me
a s th e y are a ndthi s v e hic le ha d b e e n s top pe d a nd the y fo un d two or thr e e bu rg lars in there with property

from other

burg laries in t h e co m munity , I very seriously doubt
a s a p r a c t i c a l m a t t e r

t h a tw e w o u l d b e h e r e t o d a y.

The re ason that we ’re here is it t urned out that the pe ople – the inhabitants of that vehicle, unknow n to [ the def endant], turned o u t to be three innocent y oung women.

And while their de cisio n t o g o that close to a house , howeve r close, whicheve r location it was, is probably not too wise. Certainly , that’s the re ason that we’ re he re toda y , the fa ct that – what turne d out to be the fa cts wer e not as what was f e ar e d b y [t h e d e f e n d a n t]

.
So I thi nk to tha t e xten t this is an e xce pti on a l c a se bo th f ro m th e su dd e nn e ss that came up, and that we ’re rea lly basing our decision on the fac ts as they develope d
a ft e r [the de fe nd a nt] too k his ac tio ns a nd no t the fa c ts as he mig ht h a ve re a so na bly tho ug ht the m to be wh e n h e too k th os e a c tio ns

.
I do n’ t li ke the re qu ir e me nt t o f indthat th e dis tr ic t a tt orn e y abu se d h is dis c re tio n b e c a us e I

thi nk e ve n the dis tr ic t atto rn e y fe lt tha t this wo uld be a c los e c a se and obviously

ang uished over his de cision.

Ith in k th a t [ th e d e f

e n d a n t] is a me n ab le to c o rr e c ti o n

. I d o n ’ t th in k

th e re’ s
a ny pu rp os e that c a n b e fu rthe re d b y pr oc e e din g wi th a

c ri min a l pro se c uti on in this
case

.
And be c aus e I

fi ndthat c le arl y

thi s is a c a se fo r p re tr ia l di ve rs ion , I wo uld make the ne cess ar y fi n d ing a nd direc t that a memora ndum of understa nding be prepa red g ranting to [ the def

endant] pretria l diversion.

I do th in k

th a t a p r o v is io n o f

th a t o u g h t t o b e th a t h e ma k e r e s ti tution. Re sti tut ion in a

c ri min a l c a se a ndda ma g e s in a c ivi l c a se are dif

fe re nt. The only restitution that’s been alluded to by the vi ctims in thi s case is that they have inc urre d expenses including – for counseling that they ’ve ha d to rec eive.A c c o rd ing to this se c tio n , a “q u a lif ie d d e fen d a n t” m u st m e e t ea c h o f t h e fo llo w ing re q u ire m e n ts: 1

(a) T he d efend ant has no t previ o usl y be en grant ed pret ri al d ive rs io n unde r t he pr ov i s i on s of

t h i s ch apt er or j u di ci al di v er s i on u n der t h e pr ov i s i on s of § 40- 35- 313;

(b) T he d efend ant do es not ha v e a pri o r mi sdem eano r convi ct i o n fo r whi ch a

s ent enc e of

conf i nemen t i s s er ved or a pri or f el ony conv i ct i on wi t hi n a f i ve- y ear p eri o d a f

t er c ompl et i n g t h e s en t en ce or pr obat i on ar y pr og r am for s u ch pr i or
con v i ct i on ; a n d

( c ) Th e o f

fe n s e f o r w h i c h t h e p r o s e c u t i o n i s b e i n g s u s p e n d e d i s n o t a Cl as s A or C l as s B f

el ony or a Cl as s C f el ony as def i ned i n s ubs ect i on ( a) , a s exu al offens e, dr i v i n g u n der t h e i n f

l u en ce of

a n i n t ox i ca n t a s pr oh i bi t ed by § 55- 10- 401, or
v eh i cu l ar a s s au l t a s pr oh i bi t ed by § 39- 13- 106.
7 And I don’t doubt that they ’ve ha d had [si c] to have counseling , and that they went throug h a terrible s ituation. There’ s no question in mymind that that occurr ed.

S o I wo u l d d i re ct t h at h e p ayfo r r ea s o n ab l e e x p en s es i n cu rr ed fo r c o u n s el i n g. Th a t if the y ha ve job s a ndha ve to l os e wo rk to g e t th a t c ou ns e lin g , th e n he sh ou ld
a lso de fe r tho se e xpe ns e s.

An d Iha ve n’ t he ardof

a nythi ng e lse . I f the re ’s so me dis a g re e me nt a s to wh e t h e r t h e a m o u n t t h a t ’ s b e e n s u b m i t t e d f o r c o u n s e l i n g a n d l o s s o f i n c o m e is
unrea sonable, then tha t will h av e t o b e prese nted bac k to the Court for a determination.

AN AL YSI S
On appe al, the State arg ues that the trial court substitut ed its judgme nt for that of the District Attorney Gene ral, a sserting that “the tria l court re weig hed the e vidence , vacated the prose cutor’s decision, and imposed its judgme nt on the prosec utor. And the trial c ourt did so without finding any unconsidere d evidenc e and w ithout finding that the district attorne y ’s dec ision was unsupported by substantial evidence .” The defe ndant re sponds that the trial court c orre ctly found that the District Attorney Gene ral fa iled to “prope rly weig h[] the fa ctors in his de cision to deny pretria l diversion.” We w ill re vie w the se c la ims

.
Ou r l e g isl a tur e ha s p ro vid e d tha t the de c isi on to g rant p re tr ia l di ve rs ion sh ou ld r e st w ith in the di scre tion of t he dis trict attorney g ener al. See Te nn. Code Ann. § 40-15- 105 (Supp. 2005); see also State v. Curry , 988 S.W .2d 153, 157 (Tenn. 1999) (“[W] hether to gr ant pre trial diversion to a qual i fi ed defe ndant who is statutorily elig ible is a determination that lies in t he discre tion of the distric t at t o rn ey g ener al.”) . Whil e our le g islature has de fined a “qualifie d defe ndant” a s one who
me e ts s ta tut ory

re qu ir e me nts se t ou t in Te nn e sse e Cod e An no ta ted sect io n 4 0- 15 -1 05 (a )( 1) (B )( i) (S up p. 20 05 ), the c ou rt s hav e pr ov ide d g uid a nc e to pr os e c uto rs in d e te rm ini ng wh ic h d e fe nd a nts

1

a m o n g t h o s e w h o p a s s t h e s t a t u t o r y r e q u i r e m e n t s ar e t h e n s u i t ab l e f o r p r e tr i a l d i v e r s i o n

. S e e C u rr y,8

988 S.W .2d at 157 (“ On e wh o i s statutorily elig ible is not presumptively entitled to diversion.”). Th e fa c tor s r e le va nt t o th e pr os e c uto r' s d e te rm inatio n f oc us on the defe nd a nt' s “ ‘ame na bil ity to
corr ection.’” I d. (quoting State v. Pinkham, 955 S.W .2d 956, 959-60 (Te nn. 1997)).

Ou r s u p re m e c o u rt re s t at ed , i n S t at e v

. Be l l , 6 9 S

. W

. 3 d 1 7 1 , 1 7 7 (T en n

. 2 0 0 2 ), t h at t h e S t at e's
re sp on sib ili ty , w he n r e vie wi ng a n a pp lic a tio n f

or pr e tr ia l di ve rs ion , w a s to c on sid e r an d disc us s a ll
re le va nt f a c tor s:

I n case s where the district attorney g ener al denies a n application for pretria l diversion, the denia l must be wri t t en an d m ust discuss all of the rele vant fa ctors considere d and the wei gh t ac co rded to e ach f actor . State v. Curry , 988 S.W .2d at 157. That a de fenda nt bear s the burden of establishing suitabilit y for diversion does not relieve the district at t o rn eyg ener al of the oblig ation of examining a ll of the
re le va nt f a c tor s a ndof

se tti ng ou t a ll o f the require d w ri tte n f ind ing s. I d. ; se e a lso State v. Pinkham, 955 S.W .2d at 959. I n addition, the denial statement must identify fact u al disputes betwee n the evidenc e re lied upon and the a pplication filed by

the defe ndant. State v. Curry , 988 S.W .2d at 157.

Th e fu nc tio n o f the tr ia l c ou rt in c on si dering a

pe tit ion fo r w ri t of

c e rt ior ari wa s a lso explained in Be ll, a s being for the court to r eview the evidenc e considere d by the State and de termine whether the District Attorney

Gene ral a

bused his or her

discretion in denying dive rsion:

I f an app lic a tio n f

or pr e tr ia l di ve rs ion is d e nie d, the de fe nd a nt m a y app e a l to the trial court for a writ of ce rtiorari. Tenn. Code Ann. § 40- 15-105(b) (3) ( 1997 & Supp. 2001). On revie w, t he trial court must consider only the evidenc e conside red by the di s t ri ct attorney

g ener al and must determine whether the district attorney g ener al has a

bused his o r h er d i scre tion. See State v. Curry , 988 S.W .2d at 158 (citation omitted). To determine whether there has been an abuse of discre tion, the trial court must determine whether the district attorney g ener al has considere d all of the re levant fa ctors and w hether substantial evidence exis ted to support the denial of diversion. I d.; see a lso St ate v. Hammersley , 650 S.W .2d at 353.

I d. a t 17 7 ( fo otn ote omi tte d) . T he sc op e of a he ari ng on a pe tit ion fo r w ri t of c e rt ior ari is “ on ly

to resolve a ny

fac tual disputes raised by th e d i s t ri ct at torney

g ener al or the de fenda nt.” I d. at 177 (citing Curry , 988 S.W .2d at 158).

The c ourt furthe r deta iled, in Be ll, the limited review of the trial court in hearing a petition for c ertiora

ri in a diversion matter :

I t is critica l to emphasize that the di scre tion to gra nt or deny pretria l diversion
re sts wi th the dis tr ic t a tto rn e y g e ne ra l, n ot the tr ia l c ou rt . T he tr ia l c ou rt , in exercising its rather limited revie w pursuant to a petition f or a writ of certiorari, may not r e-w eig h the evidenc e or substitut e its view for that of the district at t o rney9

g ener al. See, e .g ., Be n H. Cantrell, Review of Administrative Dec isions by Writ of Certiorari in Tennessee , 4 Mem. S t

. L

. R ev. 19, 20 (1973). I nstead, the tria l court must onlydetermine whether the district attorney

g ener al has a

bused his or her discretion by

failing to c onsider and weig h all of the rele vant fac tors or by rea ching a dec ision that is not supported by substantial evidenc e. State v. Curry , 988 S.W .2d at 158; see a lso St ate v. Hammersley , 650 S.W .2d at 355.

I d. at 179.

I n the pre sent appe al, the State arg ues that the trial court did not properly revie w the denia l of div e rs ion be c a us e the c ou rt fo un d no de fi c ie nc ie s in the Sta te ’s re sp on se to the div e rs ion re qu e st and did not eng ag e in a balancing test, as had the State. I n the State’s view, the trial court e rre d by concluding that the defen d an t wo u l d not have be en prose cuted if, a s he prof essed to believe , the victims were would-be burgla rs or vandals. Further, the St ate a rg ues that, instead of

direc ting that the State re consider the diversion re quest, the court direc ted that the State enter into a memorandum of under standing with the defe n d an t , a re medy which wa s not available to the de fenda nt. The defe ndant counter s that the State’s response to his diversion reque st w as defic ient beca use it did not
a dd re ss his a me na

bil ity to c or

re c tio n; the Sta te imp ro pe rl y inv ok e d th e “ e xce pti on a l c ir c ums ta nc e s” doctrine; a nd the State improperly considere d the opposition of the victims to di version.

As we unde rstand the tria l court’s ruling , it did not find t hat the District Attorne y Gene ral ha d abused his discre tion by

deny ing pr etrial diver sion. Rathe r, the court conclude d that the State had denied diver sion “based upon the outcome of the fac ts as they develope d afte r [the defe ndant] took his actions.” Thus, in t he court’s view, had the vehicle shot at by the def endant c ontained “two or three burg l ar s

. . . with property from other

burg laries in the c ommunity ,” criminal charg es mig ht not have r esulted. F urther, the court c oncluded that “ther e’s [ not] any purpose that can be furthe red by proce eding with a criminal prosecution in this case.”

We ag ree with the S tate that the trial court erre d in concluding that the def endant should be g rante d pretri al d i v ersion. The court ne ither identified r eleva nt fac tors the State should have considere d nor conc luded that the S t ate ha d failed to spec ify the weig ht affor ded to ea ch fa ctor
c on side re d. L ike wi se , th e tr ia l c ou rt faile d to de te rm ine tha

t su bs ta nti a l e vid e nc e didno t e xist to support the State’s denying dive rsion to the defe ndant. Rather, the trial court concluded that if the de fe nd a nt’ s a

pp are nt v ie w o f the situa tio n h a d b e e n c or re c t, that th ie ve s h a d tu rn e d the ir ve hic le int o his dr ive way , it

is like ly that he wo uldno t ha ve be e n p ro se c ute d. We a g re e wi th the Sta te that th is conclusion is speculative and debatable and that, b y i t s ruling , the trial court appea rs to have
su bs titute d it s o pin ion a s to div e rsi on for th a t of the Sta te . T he fu nc tio n o f the tr ia l c ou rt wa s to determine whether

the State abuse d its discretion in deny ing dive rsion, and this the court did not do. Further, the tria l c ourt err ed in or dering the State to enter into a memorandum of unde rstanding , for the only reme dies ava ilable to the court were to deny the petition or order

that the State re consider its denial of diversion, conside ring specific fac tors which the court was to identify

. Acc ording ly , we conclude that the trial court erre d in this m atter. We rever se t he orde r of the trial court a nd conclude that the def

endant ha s failed to esta

blish that he was entitled to pre trial diversion.10 CO NC LU SION

Ba sed upon the for eg oing a uthorities and re asoning , we r ever se the orde r of the trial court and re mand for f

urther pr ocee dings c onsistent with thi s opinion.

________________________________________ ALAN E. GL

ENN, JUDGE