         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 7, 2006

    STATE OF TENNESSEE v. JERRY WARD and ROSANNE K. WARD

                      Appeal from the Circuit Court for Benton County
                           No. CR1147 Julian P. Guinn, Judge



                     No. W2005-01802-CCA-R9-CD - Filed April 3, 2006


The Benton County Grand Jury indicted the defendants, Jerry and Roseanne K. Ward, for crimes
against revenue officers and tampering with governmental records. The defendants and the District
Attorney General agreed to pretrial diversion. When the trial court refused to approve the agreement
for pretrial diversion, the defendants filed an application for an appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. We have reviewed the record and conclude that the trial
court erred in withholding its approval of the pretrial diversion agreement. Therefore, we reverse
the judgment of the trial court and remand for further proceedings consistent with this opinion.

       Tenn. R. App. P. 9; Judgment of the Circuit Court is Reversed and Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE, JJ., joined.

Terry J. Leonard, Camden, Tennessee, for appellants, Jerry Ward and Rosanne K. Ward.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Robert Radford, District Attorney General; and Beth Boswell, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                            OPINION


        The defendants were indicted for crimes against revenue officers, Tennessee Code Annotated
section 67-1-1440(d), and tampering with governmental records, Tennessee Code Annotated section
39-16-504(a)(1) on June 6, 2005. These indictments stemmed from an incident on April 8, 2004,
where Jerry Ward understated the value of a boat he purchased. Roseanne K. Ward, the County
Clerk for Benton County, receipted Jerry Ward’s check for the understated sales tax. At a later date,
the defendants received a letter from the Tennessee Department of Revenue informing the Wards
that the value of the boat was understated. Jerry Ward immediately sent a money order to the
Department of Revenue for payment of appropriate sales tax and penalties.

        The defendants each filed an Application for Pretrial Diversion. The District Attorney
supported the grant of pretrial diversion. The trial court held a hearing on July 20, 2005 to rule on
the agreement. The trial court refused to approve the agreement, stating that the District Attorney
General had acted arbitrarily and capriciously in agreeing to the pretrial diversion. At the conclusion
of the hearing the trial court stated the following:


                Well if I read the law correctly, if the State and the defendant agree a
       memorandum of understanding, that it’s mandatory in most instances for the Court
       to approve it if the offense itself is eligible, and these offenses are eligible, you’ve got
       a class E felony and a class A misdemeanor. Not withstanding my personal opinion,
       I have to approve it unless I find that the prosecution has acted arbitrarily and
       capriciously. I can’t make that decision based solely upon the nature of the offense
       if the offense itself is eligible. However, if there was ever an offense that aught [sic]
       not be eligible, it is one based upon the allegations of the indictments in each of these
       cases.
                This Court is of the opinion that the State has acted arbitrarily and
       capriciously in joining in this. This is a case that needs being heard by a jury. Your
       application is rejected.


At the conclusion of the hearing, the defendants requested a Rule 9 interlocutory appeal, which the
trial court granted on the same date. We granted the defendants’ application on August 26, 2005.

                                             ANALYSIS

        The defendants’ sole issue on appeal is whether the trial court erred in refusing to approve
pretrial diversion for them. The defendants argue that the trial court did not actually state any
reasons to support the finding that the District Attorney acted arbitrarily and capriciously. The State
agrees with the defendants.

         To be eligible for pretrial diversion, a defendant must not have been previously granted
diversion; must not have a prior misdemeanor conviction for which a sentence of confinement was
served or a prior felony conviction within a five-year period after completing the sentence or
probationary period for the conviction; and must not have been charged with a Class A felony, a
Class B felony, certain Class C felonies, a sexual offense, driving under the influence, or vehicular
assault. See Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(c). However, statutory qualification for
pretrial diversion does not give rise to automatic entitlement. See State v. Bell, 69 S.W.3d 171, 176
(Tenn. 2002); State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the decision to grant or
deny pretrial diversion rests within the sound discretion of the prosecuting attorney. Bell, 69 S.W.3d


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at 176. When making a determination of eligibility for pretrial diversion, the prosecutor should
focus on the defendant’s amenability to correction. Id. In other words, the prosecutor should focus
on any factors which accurately reflect the likelihood that a particular defendant will or will not
become a repeat offender. Id. Among the factors the prosecutor should consider when making this
decision are: (1) the likelihood that pretrial diversion will serve the ends of justice, as well as, both
the defendant’s and the public’s interest; (2) the circumstances of the offense; and (3) the defendant’s
criminal record, social history, and physical and mental condition where appropriate. See id. (citing
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)).

        Although it is the defendant’s responsibility to demonstrate suitability for pretrial diversion,
the prosecutor is not relieved from the obligation to examine and consider all relevant factors. Id.
at 177. In fact, when denying pretrial diversion the prosecutor must discuss in writing all relevant
factors considered and the weight attributed to each factor. Id.; Curry, 988 S.W.2d at 157.
Moreover, the prosecutor’s written denial statement must identify any factual discrepancies between
the evidence relied upon by the prosecutor and the evidence presented by the defendant. Curry, 988
S.W.2d at 157. Failure to consider and articulate all of the relevant factors constitutes an abuse of
discretion. See id.

        Tennessee Code Annotated section 40-15-105(b)(2) directs a trial court to approve the
memorandum of understanding recommending pretrial diversion unless: (1) the prosecution has
acted arbitrarily or capriciously; (2) the memorandum of understanding was obtained by fraud; (3)
diversion of the case is unlawful; or (4) the certificate from the Tennessee Bureau of Investigation
as required by Tennessee Code Annotated section 40-15-106 is not attached to the memorandum.
The decision of the prosecutor to grant or deny pretrial diversion is presumptively correct and will
not be set aside absent abuse of discretion. Curry, 988 S.W.2d at 158. When reviewing for abuse
of discretion, the trial court must consider only the evidence considered by the prosecutor. Id. The
trial court may not re-weigh the evidence or substitute its view for that of the prosecutor. State v.
Yancey, 69 S.W.3d 553, 559 (Tenn. 2002).

       In evaluating whether there has been an abuse of discretion, the trial court must determine
whether the prosecutor has weighed and considered all of the relevant factors or whether the
prosecutor reached a decision not supported by substantial evidence in the record. Bell, 69 S.W.3d
at 179; see also Yancey, 69 S.W.3d at 559. The trial court may conduct a hearing, but only to
resolve any factual disputes raised by the prosecutor or the defendant. Curry, 988 S.W.2d at 158.

        In the case sub judice, the trial court stated that the District Attorney acted arbitrarily and
capriciously in agreeing to the pretrial diversion. However, the trial court did not make any findings
as to how the District Attorney acted arbitrarily and capriciously. Instead, it appears that the trial
court substituted its judgment for that of the District Attorney’s, and that of the Tennessee General
Assembly. The trial court stated that this crime should not be subject to pretrial diversion, even
though the legislature has decided that it is. Clearly, the trial court believed that the defendants
should not be granted pretrial diversion because of the trial court’s opinion as to the nature of the
crime, not because of any fault on the part of the District Attorney.


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        The memorandum of understanding was not procured by fraud, the diversion was not
unlawful, the memorandum complied with the statutory requirements, and the prosecutor did not act
arbitrarily where the defendants’ criminal and social history amply supported a grant of diversion.
This appears to be an isolated incident on the part of the defendants, and they rectified and corrected
the error, paid sales tax on the correct value of the boat, and paid the penalties. Accordingly, the
judgment of the trial court is reversed and the case remanded for entry of on order consistent with
this opinion.

                                          CONCLUSION

       For the foregoing reasons, we reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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