           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE               FILED
                        MARCH 1998 SESSION
                                                        June 26, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 03C01-9708-CR-00320
           Appellee,            )
                                )    SCOTT COUNTY
VS.                             )
                                )    HON. LEE ASBURY,
VERONICA L. PHILLIPS,           )    JUDGE
                                )
           Appellant.           )    (Pretrial Diversion)



FOR THE APPELLANT:                   FOR THE APPELLEE:


CHARLES ALLEN                        JOHN KNOX WALKUP
P.O. Box 5027                        Attorney General & Reporter
Oneida, TN 37841
                                     MICHAEL J. FAHEY, II
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     WILLIAM PAUL PHILLIPS
                                     District Attorney General

                                     CLIFTON H. SEXTON
                                     Asst. District Attorney General
                                     P.O. Box 10
                                     Huntsville, TN 37756




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged in the indictment with one count of reckless

homicide and one count of reckless aggravated assault.            The defendant filed an

application for pretrial diversion with the district attorney general, who denied the

defendant’s application by written response. The defendant then filed a petition for writ

of certiorari with the trial court, which was denied. Pursuant to Rule 9 of the Tennessee

Rules of Appellate Procedure, the defendant sought and was granted permission to

appeal the trial court’s decision to this Court. The sole issue presented in this appeal is

whether the trial court erred in determining that the district attorney general did not abuse

his discretion by denying the defendant’s application for pretrial diversion. After our

review of the record, we affirm the trial court’s decision.



              The record indicates that on May 10, 1996, at 6:30 p.m., the defendant, who

was twenty years old at the time, and a friend were traveling east at a high rate of speed

on State Highway 63. This stretch of highway was dry and flat. As the defendant drove

east, she passed a vehicle in front of her, causing a driver traveling in the westbound lane

to pull to his right in order to avoid colliding head-on with the defendant’s vehicle. At a

point approximately two miles further, the defendant again attempted to pass a vehicle

in front of her. This vehicle was driven by Gaylon Gibson. As the defendant pulled

across the double yellow line into the westbound lane of traffic to pass Mr. Gibson’s car,

she collided head-on with a vehicle driven by Timothy Bowling. The defendant’s car

came to rest on the roof of Mr. Gibson’s car. Apparently, nothing obstructed the

defendant’s view of the Bowlings’ car prior to impact. Nonetheless, no skid marks were

found on the road, indicating that neither the defendant nor Mr. Bowling applied their

brakes prior to impact, possibly because neither had time to do so.



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              None of the people involved in the accident were wearing their seat belts.

Mr. Bowling, who was thirty-four years old at the time of the accident, died as a result of

the head-on collision, and his wife, who was traveling with him, sustained serious injuries.

Mr. Gibson and his passenger were also injured, although not as gravely injured as the

Bowlings. Both the defendant and her passenger were also seriously injured, and

according to the accident report, neither remember the events leading up to the accident

or the accident itself. Following the accident, the defendant was issued two citations, one

for improper passing and one for reckless driving. Two months later, a grand jury indicted

the defendant with the reckless homicide of Mr. Timothy Bowling and the reckless

aggravated assault of Ms. Alice Bowling, his wife.



              Several months later, the defendant applied for pretrial diversion. The

defendant’s application attested that she was diagnosed with cystic fibrosis when she

was two years old, and as a result, she has always lived with her parents.              The

defendant’s home life is stable, loving, and supportive. When the defendant graduated

from high school in 1995, she began working at the Scott County Food Court and

chaperoning on a volunteer basis for the local high school band. Because of the

extensive nature of her injuries from the accident, she was unable to resume her

employment at the food court, but she has continued to volunteer as a chaperone and

she began babysitting on a part-time basis.



              The defendant’s application emphasized that the accident was not caused

by alcohol or drug use and that the defendant did not have a history of drug or alcohol

use. The application attested that the defendant had no criminal record, had no previous

driving offenses, and had never been granted pretrial diversion. The defendant also

detailed the injuries she received from the accident. She represented that various plates



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and pins were inserted into several parts of her body, but that due to complications

caused by her cystic fibrosis, her body rejected the plates and pins, and she was

scheduled for surgery to remedy this and other problems.               The defendant also

represented that she has been visiting a counselor on a regular basis in order to deal with

the emotional problems she has suffered as a result of the accident.



              In support of her application, the defendant submitted letters from friends

and authority figures in her life. These letters showed that the defendant had a good

general reputation and has shown both family and social responsibility in her life. In sum,

these letters vouched that the defendant was a trustworthy, honest, considerate, and

responsible young woman who could rise above the tragedy she experienced if given the

opportunity. The letters asked for leniency, mercy, and a “second chance” for the

defendant.



              The assistant district attorney general replied to the defendant’s application

for pretrial diversion by letter. In his letter, the assistant district attorney general stated

that he had considered all of the factors discussed in the defendant’s letter and he did not

take issue with any of the facts the defendant enumerated in her application. Even so,

he denied the defendant’s application for diversion, citing the following reasons:

              1. The nature and circumstances of the offense.

              2. The offense involved more than one victim.

              3. The personal injuries inflicted upon and the amount of property damage
              sustained by the victims was particularly great.

              4. The offense involved a victim and was committed to gratify the
              defendant’s desire for pleasure or excitement.

              5. The defendant had no hesitation about committing a crime when the risk
              to human life was high.

              6. Deterrent effect upon the defendant and others.


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              7. Denial of diversion is necessary to avoid depreciating the seriousness
              of the offense.

              8. The ends of justice require denial of diversion.



              The defendant sought the trial court’s review of the denial. The parties

scheduled a hearing at which the assistant district attorney general reiterated that he did

not dispute any of the facts presented by the defendant. Moreover, the assistant district

attorney general represented that he had considered all of the factors the defendant

discussed, but what particularly influenced his decision to deny diversion was the impact

diversion would have had on the ends of justice and the public interest. The assistant

district attorney general also stated that in his opinion, considering that the defendant was

driving well in excess of the speed limit and passing on a double yellow line, and

considering that these intentional acts killed one person and caused grave injuries to

three others, diversion was not warranted.



              The trial court determined that the district attorney general did not abuse

his discretion and that the denial of diversion was based upon sufficient facts. The trial

court stated that a reckless act resulting in the death of an individual who has done no

wrong is of the nature and circumstance to warrant close scrutiny when considering a

pretrial diversion application. The trial court further agreed with the district attorney

general that under the circumstances, denial of diversion was necessary to uphold the

ends of justice and avoid depreciating the seriousness of the offense.



              On appeal, the defendant argues several reasons why the trial court erred

in upholding the district attorney general’s denial of diversion. Primarily, she contends

that the district attorney general relied upon insufficient proof, failed to look at all

applicable factors, and instead relied too heavily on the nature and circumstances of the


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offense, which was improper without some explanation of why these factors should

outweigh the other factors. We disagree.



              Upon application for diversion, the district attorney general must consider

the relevant factors carefully in making a decision. The district attorney general “must

consider all the evidence which tends to show that the applicant is amenable to correction

and is not likely to commit additional crimes.” State v. Winsett, 882 S.W.2d 806, 810

(Tenn. Crim. App. 1993). To that end, the district attorney general should consider, in

addition to the circumstances of the offense, the defendant’s criminal record, social

history, present physical and mental condition where appropriate, amenability to

correction, behavior since arrest, home environment, current drug usage, emotional

stability, past employment, general reputation, marital stability, family responsibility, and

attitude. See State v. Washington, 866 S.W.2d 950 (Tenn. 1993); State v. Hammersley,

650 S.W.2d 352 (Tenn. 1983). In addition, the district attorney general should consider

the deterrent effect of punishment and the likelihood that pretrial diversion will serve the

ends of justice and the best interests of both the public and the defendant. See

Washington, 866 S.W.2d at 951; Hammersley, 650 S.W.2d at 355.



              If the district attorney general denies diversion, he or she must inform the

defendant through a formal, written response to the application. See Winsett, 882

S.W.2d at 810. This response should include a recitation of all evidence considered; the

reason for the denial, including which factors were considered, how some factors

controlled the decision, and why certain factors outweighed others; and an identification

of any disputed issue of fact. Id. “If the [district] attorney general bases his decision on

less than the full complement of factors . . . he must, for the record, state why he

considers that those he relies on outweigh the others submitted for his consideration.”



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State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989).



              Review of the district attorney general’s decision to deny diversion is via a

petition for writ of certiorari filed with the trial court. See T.C.A. § 40-15-105(b)(3). The

district attorney general’s decision denying diversion is presumptively correct, and the trial

court must affirm his or her decision absent a finding of abuse of discretion. See id.;

State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App. 1996). In its review of the district

attorney general’s decision, the trial court is limited to the evidence originally considered

by the district attorney general. Winsett, 882 S.W.2d at 810. However, where the district

attorney general’s letter denying diversion is insufficient for the trial court to determine

what evidence the district attorney general considered, his or her reasons for denying the

petition, and whether there are disputed issues of fact, the trial court should hold an

evidentiary hearing in order to allow the district attorney general to place this information

on the record. State v. Carolyn L. Curry, No. 02C01-9601-CC-00005, Carroll County

(Tenn. Crim. App. filed January 2, 1997, at Jackson). Only in this way can the trial court

be assured it is considering the same evidence considered by the district attorney general

and ultimately determine whether the district attorney general abused his or her discretion

in denying diversion. Id.



              For the purposes of our review, the trial court’s factual findings are binding

on this Court unless the evidence preponderates against such findings. See Lutry, 938

S.W.2d at 434; State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995). We

review the case not to ascertain if the trial court has abused its discretion, but to ascertain

if the evidence preponderates against the factual findings of the trial court, which

determines whether the district attorney general abused his or her discretion. See Lutry,

938 S.W.2d at 434; State v. Watkins, 607 S.W.2d 486, 489 (Tenn. Crim. App. 1980).



                                              7
Thus, the underlying issue for our determination remains whether, as a matter of law, the

district attorney general abused his or her discretion in denying pretrial diversion. See

Lutry, 938 S.W.2d at 434; State v. Carr, 861 S.W.2d 850, 857 (Tenn. Crim. App. 1993).



              Here, our review of the entire record reveals that the district attorney

general considered all of the relevant factors he was required to consider and that his

decision to deny diversion was based upon sufficient proof in the record. We further

conclude that the district attorney general did not abuse his discretion in denying

diversion under the totality of the circumstances of this case. While the record reveals

information favorable to the defendant’s character and sympathetic to her situation, the

record also reveals the premature death of a young man and horrible injuries to several

young people, all caused by the defendant’s intentional decision to drive at excessive

speeds and illegally pass a slower vehicle on a double yellow line. Although the accident

occurred in daylight on a flat road with no apparent obstructions, the defendant failed to

apply her brakes prior to hitting the Bowlings’ car, which supports the notion that the

defendant failed to even look for oncoming traffic before pulling across the double yellow

line to illegally pass Mr. Gibson<s car. It is also quite telling of the defendant’s behavior

that just prior to the accident, she had passed another car under similar circumstances,

narrowly avoiding another careless accident and forcing another driver to pull out of her

way. Under these circumstances, we cannot find an abuse of discretion in the district

attorney general’s decision to provide a deterrent, uphold the ends of justice, protect the

public interest and not depreciate this offense by denying diversion. Based upon this

same evidence in the record, we also reject the defendant’s suggestion that Mr. Bowling’s

death and the others’ injuries were not the result of an intentional act or acts.



              Moreover, we conclude that the decision to deny diversion is sound even



                                             8
though the assistant district attorney general may not have fully elaborated why he relied

more heavily on some factors than on others. We emphasize that the decision to rely on

some factors more heavily than others should be fully explained in writing in order to

create a clearer record on review. See Winsett, 882 S.W.2d at 810; Herron, 767 S.W.2d

at 156. Here, even though the assistant district attorney general may not have fully

explained in writing his decision to give certain factors priority over others, he did state

in writing that he reviewed each and every factor presented by the defendant but elected

to deny the defendant’s request based upon certain enumerated reasons. The assistant

district attorney general offered further explanation at the hearing, where he again stated

he considered all relevant factors and did not dispute any of the information submitted

by the defendant, but that even so, he must deny the defendant’s application because

he believed the public interest and the ends of justice would be better served by a denial.

Contrary to the defendant’s assertions, then, the assistant district attorney general did

state for the record that he was giving some factors priority over others and, to an extent,

he did explain his decision to do so. While, as we have previously stated, he could have

been more explicit and unambiguous in his explanation, we cannot find an abuse of

discretion on this basis in the record.



              We address one last point raised by the defendant. Throughout the

defendant’s argument, she reiterates that she met all technical eligibility requirements for

diversion and that there is favorable evidence for each factor the district attorney general

should have considered. This argument will not afford the defendant relief. While the

defendant bears the initial burden to demonstrate to the district attorney general both

eligibility for and entitlement to pretrial diversion, see Herron, 767 S.W.2d at 156; Winsett,

882 S.W.2d at 809-10, mere statutory eligibility under T.C.A. § 40-15-105(a) does not,

standing alone, entitle a defendant to pretrial diversion. Instead, statutory eligibility sets



                                              9
the stage for the district attorney general to review the information provided by the

defendant on the diversion application or gathered through a pretrial investigation

pursuant to T.C.A. § 40-15-104 and to determine if the defendant is entitled to pretrial

diversion. Here, the fact that the defendant has favorable evidence relating to each

relevant consideration does not mean she is automatically entitled to diversion. Neither

does it discount the factors the district attorney general determined should have priority.

Quite simply, the district attorney general’s failure to grant diversion to a defendant who

is merely technically eligible does not itself amount to an abuse of discretion.



              In sum, none of the defendant’s arguments show how the district attorney

general abused his discretion in denying her application for pretrial diversion.

Accordingly, we affirm.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
PAUL G. SUMMERS, Judge



______________________________
CORNELIA A. CLARK, Special Judge




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