           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        JUNE SESSION, 1996
                                                                FILED
                                                          October 10, 1997
STATE OF TENNESSEE,        )      C.C.A. NO. 02C01-9507-CC-00194
                           )                             Cecil Crowson, Jr.
      Appellee,            )                                    Appellate C ourt Clerk

                           )
                           )      HARDIN COUNTY
VS.                        )
                           )      HON. C. CREED MCGINLEY
SHONDA KAY MCGILL,         )      JUDGE
                           )
      Appellant.           )      (Pre-Trial Diversion)




FOR THE APPELLANT:                FOR THE APPELLEE:

W. Jay Reynolds                   Charles W. Burson
Reynolds & Reynolds               Attorney General and Reporter
611 Court Street
Savannah, TN 38372                William David Bridgers
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Robert Radford
                                  District Attorney General

                                  John Overton
                                  Assistant District Attorney
                                  Hardin County Courthouse
                                  Savannah, TN 38372



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                       OPINION


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

Appe llate Procedure, from the judgment of the Circu it Court of H ardin Co unty

affirming the District Attorney’s refusal to grant pretrial diversio n. On appe al,

Appellant claims th at the D istrict Attorney abuse d his discr etion by failing to

consider all of the factors he is required by law to consider. For the reasons set

forth, the judgment of the trial court is affirmed.



        On March 20, 1995, Appellant Shonda Kay McGill was indicted for three

counts of aggravated burglary. Appellant applied for pretrial diversion. By letter

dated May 9, 1995, the District Attorney denied the application, writing as follows:

I am compelled to deny your client diversion on the following grounds:
1. The fact that there are three distinct home burglaries committed over
a three week period indicates a continuing intention to violate the law
and no t just a casu al flirtation with an illegal act.
2. Your client has a spora dic work record that wou ld indicate in stability
in functioning as a contributing me mber of so ciety.
3. It is certainly clear from m y vantage po int that the crime of
aggravated burglary is a prevalent one and one that is steadily
increasing in number in this county. I have, therefore, considered
deterrence, bo th of the defend ant and othe rs, as a factor.
4. I have also taken into consideration the views of the victims as
express ed in the p resente nce rep ort.
After considering all factors set out by law, I do not feel this is an
appropriate case for the extraordinary relief of diversion.

Upon the District A ttorney’s de nial, App ellant petition ed the C ircuit Court of

Hard in Coun ty for a w rit of certio rari, alleg ing tha t the D istrict Atto rney a buse d his

discretion in denying her application. The Circuit Court of Hardin County affirmed

the District A ttorney’s de nial.




                                              -2-
      Tennessee Code Annota ted Secti on 40-15-105 creates a procedure for

diverting dese rving ind ividuals charged with certain crimes out of the criminal trial

process. The decision to grant this pretrial diversion re sts in the discretion of the

District Attorney. Tenn. Code Ann. § 40-15-105(b)(3) (Supp. 1996). In exercising

that discretion, the Tennessee Supreme Court has offered this guidance:

[A] prosecutor should focus on the d efenda nt’s ame nability to
correction. Any factors which ten d to accurately reflect w hether a
particular defen dant w ill or will not become a repeat offender should be
conside red.... Among the factors to be considered in addition to the
circumstances of the offense are the defendant’s criminal record, social
history, the physical and mental condition of a defend ant where
appropriate, and the likelihood that pretrial diversion will serve the ends
of justice an d the be st interest o f both the p ublic and the defen dant.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, “the focus

on amenability to correction is not an exclusive on e....” State v. Carr, 861 S.W.2d

850, 855 (Tenn. Crim. App. 1993). Deterrence of the defen dant a nd oth ers is

also a proper fac tor to cons ider. Hammersley, 650 S.W.2d at 354. In fact, the

circumstances of the crime and the need for deterrence may outweigh other

applic able factors an d justify the de nial of pretria l diversion. See e.g. State v.

Helms, 720 S.W.2d 474 (Tenn . Crim. A pp. 198 6); State v. Holland, 661 S.W.2d

91 (Tenn . Crim. App. 19 83).



      In deciding whether to grant diversion, the District Attorney must consider

all the releva nt factors and canno t ignore an y relevant fa ctors. See State v.

Herron, 767 S.W .2d 151, 155 (Tenn. 198 9); State v. Markham, 755 S.W.2d 850,

853 (Tenn . Crim. A pp. 198 8). When denying an application for pretrial diversion,

the District Attorn ey mus t clearly articula te the specific reasons for denial in the

record in order to p rovide for m eaning ful appella te review. Hammersley, 650

S.W.2d at 355. The record must reflect consideration of all the relevant factors.


                                          -3-
State v. Kirk, 868 S.W.2d 739, 742-43 (Tenn. Crim. App. 1993).                   As the

Tennessee Supreme Court said in Herron:

This requirement (that the District Attorney consider all relevant factors)
entails more than an abstract statement in the record that the district
attorney general has considered these factors. He must articulate why
he believes a defendant in a particula r case do es not m eet the tes t. If
the attorne y gene ral base s his decisio n on le ss tha n the fu ll
complement of factors enumerated in this opinion he must, for the
record, state why he considers that those he relies on outweigh the
other submitted for his consideration. (emphasis added)

767 S.W.2d at 156. In Carr this Cou rt said in dicta that failure o f the record to

reflect that the District Atto rney co nside red all o f the ap plicab le facto rs wou ld

allow a reviewing court to find an abuse of discretion. 861 S.W.2d at 858.



       When reviewing a District Attorney’s decision to deny pretrial diversion, the

trial court mus t upho ld the D istrict Atto rney’s decision unless there has been an

abuse of discretion.     Pace v. S tate, 566 S.W.2d 861 (Tenn. 1978). In other

words, the decision “of the prosecutor is pres ump tively cor rect an d it sho uld on ly

be set aside on the ba sis of pate nt or gross abuse of pr osecu torial discretio n.”

Id. at 870 (co ncurring op., J. He nry). The trial court may find an abuse of

discretion only if there is an absence of any substantial evidence to support the

decision of the District Attorney. Hammersley, 650 S.W .2d at 356. As th is Court

pointed out in State v. Brown, 700 S.W .2d 568, 570 (Tenn. Crim . App. 1985 ),

under the abuse of discretion standard, a trial judge is not allowed to determine

whether he thinks a defend ant sho uld be gr anted d iversion, bu t is restricted to

determining whether the District Attorney abused his discretion. Therefore, in a

close case, where the District Attorney could h ave legitimately granted or denied

the application, the trial judge must defer to the judgmen t of the District Attorney.

Carr, 861 S.W.2d at 856.


                                           -4-
       On appellate review o f the judgme nt of the trial court in diversion cases

the trial court’s findings of fact are binding on an appellate court unless the

evidence prepon derates against th ose findin gs. Helms, 720 S.W .2d at 476.

Howeve r, in case s whe re ther e is no factua l dispute, a n appe llate court is left to

determine whether the trial court properly concluded that the District A ttorney did

or did no t abus e his d iscretio n.    Since the appellate court is reviewing a

conclusion of law made by the trial court and such findings are not binding on an

appellate court, the review by an appellate court where there are no contested

findings of fact is de novo. Carr, 861 S.W.2d at 856; Helms, 720 S.W.2d at 476.

The District Attorn ey’s decis ion mu st stand u nless there is a lack of any

substa ntial eviden ce to sup port it. Hammersley, 650 S.W.2d at 356.



       In the case at bar, there is no dispute over the trial court’s findin gs of fact.

Thus, we focu s our revie w on wh ether, as a matte r of law, the District Attorney

abused his discre tion. Carr, 861 S.W.2d at 856. As a preliminary matter, we

recognize that the D istrict Attorne y did not do cume nt consid eration o f all the

applic able factors in h is letter of denial. The District Attorney failed to mention

Appe llant’s lack of criminal record and positive social history. In addition, the

District Attorney failed to state why the factors on which he chose to rely

outweighed the other factors he was required to consider. Therefore, the District

Attorn ey’s letter is deficient.    The issue then becomes whether a District

Attorn ey’s deficient letter mandates a finding that the Dis trict Atto rney a buse d his

discretion .



       As stated previo usly, it is important for the District Attorney to memorialize

his consideration of the applicab le factors in h is denial lette r. See e.g., Herron,

                                           -5-
767 S.W .2d at 156 ; Markham, 755 S.W.2d at 853; Kirk, 868 S.W.2d at 742-43;

Carr, 861 S.W.2d at 858. The letter found as an appendix in Carr is an excellent

exam ple of how su ch letters s hould b e written. Carr, 861 S.W.2d at 859. In the

Carr letter, the District Attorney stated the reasons for denial, the factors which

reflected positively on the app licant and why the positive factors were

outweighed.



       Although the District Attorney’s letter is important, deficiencies in such

letters do not always mandate a finding of abuse of discretion. While the letter

in this case could ha ve been more c ompre hensive , it does reflec t a deliberate,

reasoned judgm ent. The District Attorney’s letter was not so deficient that in and

of itself it constitutes an abuse of discretion.



       In additio n, there is substantial evidence to sup port the District A ttorney ’s

denial of diversion .   The first rea son the District Attorney gave for denying

Appe llant’s applic ation w as tha t the circ ums tance s of the offens e reflect more

than a casual flirtation with illegal activity. Appellant was charged with three

counts of aggravated burglary for burglaries which stretched over a three week

period. Althou gh two of the b urglaries were committed in one night, Appellant

chose to participate in another burglary two weeks later. We conclude that

Appe llant’s actions ind icated a s ustained intent to violate the law and n ot sim ply

a one tim e, impe tuous illega l act.



       The District A ttorney also g ave A ppella nt’s sporadic work record as a

reason for denying her application for pretrial diversion. Between 1993 and 1994,

Appellant had th ree diffe rent job s. Nev erthele ss, Ap pellan t is nineteen yea rs old,

                                           -6-
and one would not necessarily expect a lengthy established career history. Wh ile

social history is an approp riate consideration , application of this factor in sup port

of the denial of p retrial diversio n is not su pported by this reco rd.           See

Hammersley, 650 S.W .2d at 355. However, improper application of one factor

does not pre vent us from fin ding th at there is substantial eviden ce to suppo rt the

District Attor ney’s de nial. Carr, 861 S.W .2d at 857 .



       The District Attorney also relies on the deterrence of Appellant and others

in denyin g App ellant’s application. Deterrence of the defendant and others is a

proper consideration in pretrial diversion c ases. Hammersley, 650 S.W.2d at

355. As we observed in Holland, “No one is in a better position to be informed

of criminal activity in a circuit than the District Attorney General.” 661 S.W.2d at

93.   The nee d to deter App ellant and others from com mitting aggrava ted

burglaries supports the District Attorney’s denial of Appellant’s application for

pretrial diversion.



       Finally, the District Attorney cited the views of the victims as a reason for

denying Appellant’s application. While the views of victims do not constitute a

separa te factor which the District Attorney must consider, they do relate to the

nature and circumstances of the offense. The victims expressed great sorrow at

the irreplaceable loss of valuables such as a s on’s savings a nd a cam era

containing film with Chris tmas p hotos. One victim was financially harmed as her

insura nce w ould not cover the economic loss she sustained. The victims were

so scared by the burglaries that one had trouble sleeping at night and another

slept with a gun by her he ad.        Aga in we find th at the circumstances of the

offens e sup port the District A ttorney ’s den ial.

                                            -7-
       W e note that Appellant has no prior criminal record and seems to have a

favora ble social history. Nevertheless, the circumstances of the crime and the

need for deterrence support the District Attorney’s denial and outweigh these

factors which weigh in favor of approval of pretrial diversion.



       Although one of the factors offered by the District Attorney is not supported

by the record, we find that the District Attorney’s denial is supported by

substantial evidence of other relevant cons iderations and that the District

Attorney did not ab use his d iscretion. W e therefo re affirm the judgm ent of the

trial court.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




                                        -8-
