FILED

September 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CR-00016

)

Appellant, )

)

) SULLIVAN COUNTY

VS. )

) HON. R. JERRY BECK

VELMA JEAN FREEMAN, ) JUDGE

)

Appellee. ) (Pretrial Diversion)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SULLIVAN COUNTY

FOR THE APPELLEE: FOR THE APPELLANT:

RICHARD A. SPIVEY JOHN KNOX WALKUP

142 Cherokee Street Attorney General and Reporter

Kingsport, TN 37660

TODD R. KELLEY

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

GREELEY WELLS

District Attorney General

JOSEPH EUGENE PERRIN

Assistant District Attorney General

Sullivan County Justice Center

Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 1 Tenn. Code Ann. § 39-17-417 and Tenn. Code Ann. § 39-16-201.

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OPINION

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules

of Appellate Procedure. The State of Tennessee appeals from the trial court’s

determination that the District Attorney General abused his discretion by denying

pretrial diversion. We affirm the judgment of the trial court.

The Defendant was indicted on one count of possession of marijuana and

one count of introducing the marijuana into a penal institution.1

 The basic facts

are that the Defendant attempted to deliver approximately 7.9 grams of marijuana

to her adult son, who was incarcerated in the Sullivan County jail. Sheriff’s

deputies observed her placing a white envelope under the cell block door. When

it was determined that the envelope contained marijuana, she was arrested.

The Defendant applied for pretrial diversion pursuant to Tennessee Code

Annotated § 40-15-105. Under our law, she was entitled to be considered. The

District Attorney denied the Defendant’s application, setting forth his reasons for

denial in a written response. The Defendant submitted a petition for writ of

certiorari to the Criminal Court of Sullivan County, asserting that the District

Attorney abused his discretion by denying pretrial diversion. The District Attorney

submitted his record concerning his denial of pretrial diversion and, after

reviewing this record, the trial court found that the District Attorney had abused

his discretion and ordered that the Defendant be granted pretrial diversion. It is

from this order of the trial court that the State appeals.
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The Pretrial Diversion Act provides a means of avoiding the consequences

of a public prosecution for those who have the potential to be rehabilitated and

who may thus avoid future criminal charges. See Tenn. Code Ann. § 40-15-105.

Pretrial diversion is extraordinary relief for which the Defendant bears the burden

of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State

v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980). The general criteria for

probation and pretrial diversion are similar, but should be more stringently applied

to diversion applicants. Poplar, 612 S.W.2d at 501.

The district attorney is vested with the discretion to approve or deny pretrial

diversion. See Tenn. Code Ann. § 40-15-105(b)(3). A defendant who applies

for and is denied pretrial diversion may “petition for a writ of certiorari to the trial

court for an abuse of prosecutorial discretion.” Tenn. Code Ann. § 40-15-

105(b)(3). The trial judge cannot substitute his judgment for that of the district

attorney when reviewing a denial of pretrial diversion. State v. Watkins, 607

S.W.2d 486, 488 (Tenn. Crim. App. 1980). The district attorney’s decision is

viewed as ?presumptively correct” and will not be set aside unless there is a

finding of gross and patent abuse of discretion. State v. Hammersley, 650

S.W.2d 352, 356 (Tenn. 1983) (citing Pace v. State, 566 S.W.2d 861, 870 (Tenn.

1978)).

 The trial court’s scope of review is limited to the inform ation provided in

the record upon which the district attorney based the decision. State v. Carr, 861

S.W.2d 850, 855-56 (Tenn. Crim. App. 1993); Poplar, 612 S.W .2d at 500. “In

view of this evidentiary restriction, an evidentiary hearing would seem unneeded

in the usual case. However, a hearing may be useful to clarify matters already
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in the record about which there may be some dispute.” State v. W insett, 882

S.W.2d 806, 810 (Tenn. Crim. App. 1993). If there is a factual dispute, the trial

judge should conduct an evidentiary hearing to resolve the dispute before

determining whether there has been an abuse of discretion in denying diversion.

State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997).

 In cases in which the facts are undisputed, as they generally are in this

case, the issue primarily becomes a question of law, and this Court therefore is

not bound by the lower court’s decision. Carr, 861 S.W.2d at 856. In such a

case, the underlying issue is whether, as a matter of law, the district attorney

general abused his or her discretion. Id. Our review focuses on whether there

is substantial evidence in the record to support the district attorney’s refusal to

divert. In a close case, if the record supports the decision to grant or deny

pretrial diversion, “<it cannot be an abuse of discretion to decide the case either

way.’” Carr, 861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978)). 

When a pretrial diversion request is denied, the district attorney must state

the specific reasons for denial in the record to preserve those reasons for

meaningful appellate review. State v. Herron, 767 S.W.2d 151, 156 (Tenn.

1989). The following factors should be considered to determine whether pretrial

diversion should be granted: 

?[the] circumstances of the offense; the criminal record, social

history and present condition of the defendant, including his

mental and physical conditions where appropriate; the deterrent

effect of punishment upon other crim inal activity; defendant’s

amenability to correction; the likelihood that pretrial diversion will

serve the ends of justice and the best interests of both the public

and defendant; and the applicant’s attitude, behavior since
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arrest, prior record, home environment, current drug usage,

emotional stability, past employment, general reputation, marital

stability, family responsibility and attitude of law enforcement.”

State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.

Markham, 755 S.W .2d 850, 852-53 (Tenn. Crim. App. 1988)). 

Due to the limited scope of certiorari review, a form al written response is

required to demonstrate that the district attorney considered all the relevant

factors and to explain why certain factors outweighed others. The narrow scope

of review has made the district attorney’s written response of primary importance.

Indeed, in a review in which no hearing is held, the district attorney’s letter is the

only concrete record from which to evaluate whether an abuse of discretion has

occurred. 

As our supreme court recently stated, a district attorney general is not

required to include in the record all the evidence relied upon to deny diversion.

State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). The district attorney

general is required to identify the factual basis and rationale for the decision to

deny pretrial diversion. Id. The information should be sufficiently detailed so that

the defendant can ascertain the existence of any factual disputes. Id.

In his letter denying the Defendant’s application to pretrial diversion, the

District Attorney referred to the Defendant’s “formal request” for diversion.

Although no written application for pretrial diversion is in the record, the parties

stipulated for a background investigation pursuant to Tennessee Code Annotated

§ 40-15-104. The report of this investigation reflects that the Defendant was
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forty-three years old, divorced, and the mother of four children. She has been

married five times. She dropped out of school after the sixth grade and was

married for the first time at age fourteen. The Defendant reported her health as

“fair” and stated that she has no history of alcohol abuse and has never used

illegal drugs. At the time the background investigation was prepared, she was

employed as a housekeeper at a Kingsport, Tennessee motel and her employer

confirmed that she was a good employee. Prior to this job she had briefly worked

as a housekeeper at another motel in the Kingsport area, and that employer also

confirmed that she was a good worker. Prior to that she reported that she was

employed for seven years as a cook at a club in Kingsport. One of her daughters

and a granddaughter lived with her. Another child, along with five of the

Defendant’s siblings, lived near her in the Kingsport area. Her only prior record

of criminal activity was a conviction of driving without a license and a charge of

violation of “light law,” both of which occurred some five years prior to the

preparation of the pretrial diversion report.

The pretrial diversion report contained the following statement from the

Defendant concerning the charges against her: 

On the date of the offense, it was requested that I bring in a baggie

with marijuana in it. I was told to put it in an envelope and kick it

under the bars. I made a big mistake by doing this. I had a serious

lack of judgment. I wish I had never done this. It was stupid and

irresponsible. I will never in this or any other life ever do it again.

I would be suitable for probation because I have never been in

trouble before, and I guarantee I will never be in trouble again. I

truly am sorry and I regret that this happened.

In his letter denying the Defendant’s application for pretrial diversion, the

District Attorney General stated that his decision was based on the following

factors:
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(1) The defendant’s actions of attempting to introduce

drugs into the Sullivan County Jail is of special concern to the State

due to problems regarding the possession and use of drugs by

inmates of this facility. The defendant’s deliberate and intentional

act endangered the inmates incarcerated at this facility as well as

endangered the men and women employed at this facility. The

introduction of drugs and other contraband into the jail is a serious

problem of epidemic proportions. The granting of pre-trial diversion

for such a crime will reduce the resistance, if not encourage, others

who might engage themselves in like or similar conduct.

(2) The defendant’s unstable work record, her family and

social history, as well as her lack of education demonstrate her to be

an unacceptable candidate for diversion. It should be noted that the

defendant was trying to pass drugs to her own child who was

incarcerated on felony charges at the time.

(3) The defendant has previously been convicted of no

driver’s license.

After reviewing the record submitted by the District Attorney General, the

trial judge entered a memorandum order which included findings of fact and his

analysis of the applicable law. The trial judge observed that the first factor relied

upon by the District Attorney General could be generally categorized as “the

circumstances of the case and the need for deterrence.” The trial judge

recognized that under Tennessee law, ?the circumstances of the case and the

need for deterrence . . . cannot be given controlling weight [in determining

whether to grant pretrial diversion] unless [these factors] are <of such

overwhelming significance that they (necessarily) outweigh all other factors.’”

See State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.

Markham, 755 S.W .2d 850, 853 (Tenn. Crim. App. 1988)). ?In the absence of

such exceptional circum stances, <the district attorney general must consider

evidence which tends to show that the (defendant) is amenable to correction . .

. and is not likely to commit further criminal acts.’” Id. (quoting Markham, 755

S.W.2d at 853). The trial court further noted that the District Attorney’s
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generalized statement concerning the circumstances of the offense and the need

for deterrence would apply to any Class C, D, or E felony, but noted that the

legislature has specifically provided that a defendant charged with introducing

marijuana into a penal institution is eligible for pretrial diversion.

Concerning the second factor set forth by the District Attorney General in

denying diversion, the trial judge noted that the Defendant was forty-three years

old and had no significant criminal record. The judge noted that “the Defendant

left school at age fourteen, got married, and had four children. She is obviously

under-educated, works as a maid, and is described as a good worker.” The trial

judge expressed his concerns about the constitutionality of denying diversion

based upon a lack of formal education and further noted that the legislature had

set no educational requirements for a person seeking diversion. 

We can understand why a district attorney general would prefer not to

grant pretrial diversion to anyone charged with trying to deliver marijuana to an

inmate in a local jail or other penal institution. However, as the trial judge pointed

out, the law enacted by our legislature provides that someone who commits such

a crime is eligible for diversion unless the person’s prior criminal record renders

them ineligible. While the district attorney has the discretion to grant or deny

diversion to eligible defendants, that discretion is not absolute.

After reviewing the record submitted by the District Attorney General, the

trial court implicitly found that the conclusory statements asserted by the District

Attorney General did not set forth a sufficient basis for denying pretrial diversion

to the Defendant, and based on the record, the trial judge determined that
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denying the Defendant pretrial diversion constituted an abuse of discretion. From

our review of the record, we are unable to conclude that the trial judge erred.

The judgment of the trial court is accordingly affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE