# FILED September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801- CR-00016 ) Appe llant, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK VELMA JEA N FREEMAN, ) JUDGE ) Appellee. ) (Pretri al Divers ion)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLEE : FOR THE APPELLANT : RICHARD A. SPI VEY JOHN KNOX WALKUP 142 Cherokee Street Attorney Generaland Reporter Kingsport, TN 37660 TODD R. KELLEY Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 GREELEY W ELLS Distri ct Attor ney General JOSE PH E UGE NE P ERR IN Assistant Distri ct Attor ney General Sullivan County Justi ce Center Blountvi lle, TN 37617 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. § 39-17-41 7 and Tenn. Code Ann. § 39 -16-201. -2- 

# OPINION

This is an inte rlocuto ry app eal pu rsuan t to Ru le 9 of the Tennessee Rules of Appellate P rocedu re. The State o f Ten ness ee ap peals from th e trial co urt’s determinati on that the Di strict Attorney

Gen eral ab used his discreti on by denying pretrial divers ion. W e affirm the judgm ent of the tria l court.

The Defendant was indi cted on one count of possession of marijuana and
one count of i ntroducing t he marijuana i nto a penal i nstitut ion. 1 The ba sic facts
are that the Defendant attempted to deliv er approxi mately 7.9 gr ams of marijuan a to her adult s on, who was incar cer ated in the Su llivan C ounty jail. She riff’s deputiesobse rved h er plac ing a w hite en velope unde r the ce ll block door. When it was determined that t he envelope contained marij uana, she was arre sted.

The Defendant appli ed for pret rial diversi on pursuantto Tennessee Code Annotated § 40-15-105. Under our law, shewas entit led to be consider ed. The District Attorney deni ed the Defendant’ s applicat ion, set ting for th his reas ons for denial in a writ

ten response. The Defendant submitted a pet ition for w rit of certiorari to the Criminal Court of Sullivan County, ass erting t ha t the Distri ct Attorney abus ed his discre tion by d enying pretrial d iv ersion. The Di strict Attorney subm i tted his record concerning hi s denial of pretri al diver

sion and, af

te r reviewi ng this record, the t rial cour t found that

the Distri ct Attor ney had abused his discreti on and ordered that the Defendant be grante d pretr ial divers ion. It is from this order of t he trial court that the State appeals.-3- The PretrialDiversion Actprovides a means of avoiding t he consequences of a public pr

osecution for those who have t he po t ential t o be rehabil itated and who may thus avoid future cri minal charges. See Tenn. Code Ann. § 40-15-105. Pretrialdiversi on is extr aordinary relief

for which t he Defendant bears the burden of proof. State v. Baxter , 86 8 S. W.2d 6 79, 681 (Ten n. C ri m. App. 19 93); State
v. Poplar , 612 S.W.2d 498, 501 (Tenn. Cri m. App. 1980). Thegeneral criteria for prob ation and pretrial diversion a re similar, but shou ld be more stringently applie d to diversion applican ts. Poplar , 612 S.W.2d at 501.

The district attorne y is vested w ith the discr etion to approve or

deny pretr ial diversi on. See Tenn. Code Ann. § 40-15-105( b)(3). A defendant who appl ies forand is denied pretrial diversion ma y “petition for a writ of certiorari to the trial
cou rt for an abuse of prosecutori al discr

etion.” Tenn. Code Ann. § 40- 15 - 105(b)(3). The trial judge ca nnot subs titute hi s judgment for that of t he district attorney when re viewing a denial of p retrial diversio n. State v. Watkins , 607 S .W.2d 486, 488 (Tenn. Cri m. App. 1980). The di strict attorney’s dec ision i s viewed as 

### ?

presumptively correct” and will not be set aside unless there is a findingof gross a nd pate nt abus e of discre tion. Sta te v . Ha mmersley , 650 S.W.2d 352, 356 (Tenn. 1983)(citi ng Pace v. State , 566 S.W.2d 861, 870 (Tenn. 1978)).

The trial cou rt’s sco pe of re view is limit ed to th e inform ation p rovide d in the record upon whic h the district attorne y based the decis ion. State v. Carr , 861 S.W.2d 850, 8 55-56 (Ten n. Crim

. App. 19 93); Poplar , 612 S.W .2d at 500 . “In viewof this evidentiary restrictio n, an e videntia ry hea ring wo uld seem unneeded in the usual ca se. How ever, a he aring m ay be us eful to clarify matters alr eady-4-

in t he record ab out which there may be so me dispu te.” State v. W insett , 88 2 S.W.2 d 806 , 81 0 (Te nn. Cri m. App. 1993). I f there i s a factualdispute, the trial judge should conduct an evidenti ary heari ng to resol ve the dispute be for e determiningwhether there has been an abuse of discretion in denying diversi on. State v. Pinkham , 955 S.W .2d 956, 960 (Tenn. 199 7).

In cases in wh ich the facts are un disputed, as the y generally are in this case, the issue primarily bec omes a question of law, an d this Court therefo re is not bound by the l ower court’s d ecision. Carr , 861 S.W.2d at 856. I n such a case, the underly ing issue i s whe ther, as a matter of l aw, the district attorney general abused hi s or her dis cretion. Id

. Our review focu ses on wh ether there is substanti al evidence in the record to suppo rt the district atto rney’s refu sal to divert. In a close case, if the record s upport s the decisi on to grant or deny pretri al diversion, “ 

### <

it cannot

be an abuse of discr etion to d ecide the case either way.’” Carr , 861 S.W.2d at 856 (quot ing State v. Grear , 568 S.W.2d 285, 286 (Tenn . 1978)).

When a pretri al diversion request is denied , the district atto rney m ust state the specifi c reasons for denial i n the record t o preserve t hose r easons for meaningful appellate review. State v. Herron , 767 S.W .2d 151, 156 (Tenn. 1989). The followi ng factors should be consid ered to determine whether pretri al diversion should b e grante d: 

### ? [the] circumstances of t he offense; the crimin al record, social history and present condi tion of t he de fenda nt, inclu ding h is mental and physical conditi ons where appropri ate; thedeterrent effectof punish ment upon o ther crim inal ac tivity; defe ndan t’s amen ability to correct ion; the li kelihood t hat pretrial d iversion will serve the ends of just ice and the best interest s of both th e pub lic and defen dant; a nd the appli c ant’s atti tude, behavior since-5- arrest, prior reco rd, h om e environment, current drug usage, emotional stability, past em ployme nt, general reputation, mari tal stability, family re spons ibility and attitud e of law en forcem ent.”
State v. Washington , 866 S.W.2d 950, 951 (Tenn. 19 93 ) (quoti ng State v. Markham , 755 S.W .2d 850 , 852-53 (Tenn . Crim. A pp. 198 8)).

Due to the li mited scope of certio rari revie w, a form al written respo nse is required to demonstrate that the di strict attorney

considered al l the rel evant factors and to expla in why c ertain factors ou tweighed other s. The narrow scope of review has made the distri ct attorney’ s written response of primary importance. Indeed, in a revie w in wh ich no hearin g is he ld, the d istrict atto rney’s letter is the only concre te record from wh ich to evaluate whet her an abuse of disc retion has
occurre d.

As ou r supre me court recently stated, a distri ct attorney general i s not required to inclu de in th e reco rd all the evid en ce reliedupon to deny di version. State v. Pinkham , 955 S.W .2d 956, 960 (Tenn. 199 7). T he distri ct attorney general is required to identify the factua l basis and rationa le for the de cision to deny pretri al diver

sion. Id. The informati on should be suff icient ly detai led so that the defe ndant c an asc ertain the e xistence o f any factua l disputes
. Id.

In his lette r deny ing the Defe ndan t’s app lication to pretr ial div er sion, th e District Attorney referred to th e Defend ant’s “formal requ est” f or diversi on. Although no wri tten appli cation for pretri al diversio n is in the record, the par ties stipul ated for a background investigati on pursuant to Tennessee Code Anno tate d § 40-15-1 04. Th e report of this i nvestigat ion refl ects that the Defendant was-6-

forty-three years old, divorced, and the mother of four chil dren. She has been married fi ve t ime s. She d ropped out of s chool after the six th grade and was married for

thefi rst ti me at age fourteen. The Defendant repor ted her healt h as “fair” and stated t ha t she has no history of alcohol abuse andhas never used illega l drugs. At the ti me the background investigation was prepared, sh e w as employed as a housekeeper at a Ki ngsport, Tennessee mote l and her employer confirmed that she was a good empl oyee. Pri or to thi s job she had briefly worked
as a housekeeperat another motelin the Kings port area, and thatemployer also confirmed that she w as a go od work er. Prior to that she rep orted that she was employed forseven ye ars as a c ook at a c lub in King sport. One of he r daughters and a granddaughter li ved with her . Another chi ld, alon g with five of the Defe ndan t’s sibli ngs, li ved near her in the Kingspo rt area. Her only prior rec ord of criminal activi ty was a convict ion of driving wit hout a li cense and a charge of violat ion of “light law,” bo th of w hich occu rred some fiv e years pri or to the prepara tion of the p retrial diversio n report.

The pretrial d iversion report conta ined th e follo w ing statement from the Defen dant co ncernin g the cha rges ag ainst her: On the date o f the offe nse, it w as req ueste d that I b ring in a bagg ie with marijuana i n i t. I w as told to put it in an en velope and k ick it under the bars . I made a big mis take by d oing this. I had a serious lackof judgment. I wish I had ne verdone this. It was st upid and irresponsi ble. I will never in this or any o th er life ever do it again. I would be suitable f o r proba tion be caus e I have never been in trouble before, and I gua r antee I w ill never be in trouble ag ain. I truly am sorry and I r

egret that

this happened.
In his le tter den ying the Defe ndan t’s applicat ion for pr etrialdiversi on, the District Attorney Gener

al state d that his

decision was bas ed on the fo llowing factors:-7- (1) T he de fendant’s actions of attempting to int roduce drugs into the Sullivan Cou nty Jail is of special conce rn to the Sta te due to problems re garding the pos session and use of drugs by inmates of this faci lity. The defendant’s d eliberate and intentional act endangered the inmates incarcerated at thi s f acility as well as e ndange red the men and women employed at thi s facil ity. The introduct ion of drugs and oth er contra band in to the jai l is a serious problem of epidemic proportions. The granting of pre-t rial diversion forsuch a crim e will reduce the resistance, if not enco urage, others who m ight enga ge them selves in like or similar c onduc t. (2) The defendant’s unstable work

record, her

family and social history, as we ll as herlack of educat ion demonstrate her to be an unacc eptable candida te for diversio n. It should be noted t hat the defendantwas trying to pass drugs to her own ch ild who was incarcerated on felony c harges at the time. (3) The defendant has pr eviously been convicted of n o driver’ s license.
After reviewi ng the record s ubmitted by the Dis trict Atto rney G enera l, the trialjudge entere d a m emo randu m ord er whic h inclu ded fin dings of fact a nd his analys is of the appl icable l aw. The tri al judge observedthat the first f actor rel ied
u pon by t he Distri ct Attorney General coul d be generall y categori zed as “the circumstancesof the case and t he nee d fordeterrence. ” The tria l judge recognized that unde r Tenn essee law, 

### ? the cir cumstanc es of the case and the need for deter rence . . . cannot be given controll ingweight [in dete rmining whetherto grant pr etrial diversio n] unless [these fac tors] a re 

### < of su ch overwhelming significanc e that they (neces sarily) outw eigh all oth er facto r s.’” See State v. Washington , 866 S.W.2d 950, 951 (Tenn. 19 93) (quo ting St ate v. Markham , 755 S.W .2d 850 , 853 (T enn. C rim. App . 1988)). 

### ? In the absence of such exce p tional circum stance s, 

### < the dist rict at

torney gener

al must consider evidence which ten ds to show th at the (de fendan t) is amen able to co rrection . .

. and is not likely to comm it further criminal acts.’” Id. (quoting Markh am , 75 5 S.W.2d at 853 ). The trial cou rt furthe r noted that the District A ttorney ’s-8-

generalizedstatementconcerning t he circumstances of the offens e and the need fordeterrence woul d apply to any Class C, D, or E felony, but noted that t he legislature has s pecifi cally pr ovided that

a defendant char

ged with i ntroducing marijuana i nto a penal i nstitut ion is el igiblefor pret rial diversion.
Concerning the se cond factor s et forth b y the D istrict Atto rney G enera l in denying diversi on, the trial j udge noted that the Defendant wasforty-three years old and had no signif icant cri minal record. The judge noted that “the Defendant left schoo l at age fou rteen, go t married , and ha d four ch ildren. She is obviou sly under-educated, works as a maid, and is described as a good worker.” The trial judge express ed his co ncerns about the constitution ality of d enying diversi on based upon a lack of formal educati on and further noted that the legisl ature had set no ed ucationa l requirem ents for a p erson s eeking diversion.

We can un dersta nd why a district attorn ey gene ral would prefer no t to grant pret rial diversion to anyone charged with tr ying to del iver marijuana to an inmate in a loca l jail or other penalinsti tution. However, as t he trialjudge pointed out, the law enacted by ourlegisl ature provi des that someone who commits such
a crime is el igiblefordiversi on unless the pe rson’s prior crimina l record renders them ineli gible. While the dist rict at torney has t he discret ion to grant or deny diversi on to eli gible defendants, that discret ion is not absolute.

After reviewi ng the record submitted by the Dist rictAttorney Gener al, the trialcourt impl icitly found that the co nclusory statem ents asserted by the Distri ct Attorney Gene ral did not s et forth a suffic ient ba sis for denyi ng pretri al diver sion to the Defendant, and based on the reco rd, th e trialjudge determi ned that-9-

denying the Defendant pretrialdiversion consti tuted an abuse of disc reti on. From
o ur review of

the record, we are unable to conclude that the tri al judge er red. The judgment of the t rial cour t is accor

dingly af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE