         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 8, 2000 Session

             STATE OF TENNESSEE v. JEFFERY SCOTT SHANDS

                      Appeal from the Circuit Court for Madison County
                          No. 98-891    Franklin Murchison, Judge



                   No. W2000-00006-CCA-R9-CD - Filed February 26, 2001


The defendant, Jeffery S. Shands, challenges the trial court’s order upholding the District Attorney
General’s denial of pretrial diversion for the charges of criminally negligent homicide and reckless
driving. He contends that the District Attorney abused his discretion in failing to consider and weigh
all of the relevant factors presented in the evidence. After a review of the record and the applicable
law, we affirm the trial court’s order denying pretrial diversion.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Jeffery Scott Shands.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; James
(Jerry) Woodall, District Attorney General; Christopher Shultz, Assistant District Attorney General;
and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The Madison County Grand Jury indicted Defendant for criminally negligent homicide (Class
E felony) and reckless driving (Class A misdemeanor). Defendant sought to divert these offenses
through his application for pretrial diversion, pursuant to Tenn. Code Ann. §40-15-105. The District
Attorney General subsequently declined to grant pretrial diversion. The Defendant filed a petition
for writ of certiorari. The trial court denied the petition. Pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure, Defendant appeals from the trial court’s decision affirming the District
Attorney General's denial of the application for pretrial diversion. The Defendant insists that the trial
court improperly held that the District Attorney General did not abuse his discretion in denying
Defendant’s application for pretrial diversion. We affirm the decision of the trial court.
                                          I. Background

        At the time of the offense charged here, Defendant was a twenty-two year old theology
student at Union University, employed as a Youth Ministry Intern at Colonial Baptist Church and
aspiring to be a youth minister. On September 7, 1998, Defendant’s motor vehicle struck and killed
seven-year-old Brittany Thurston, who ran from behind a parked vehicle into the path of Defendant’s
vehicle. Defendant initially received a citation for speeding--48 m.p.h. in a 30 m.p.h. zone. He was
later indicted as set forth above.

       According to the pretrial investigative report and the transcript from Defendant’s hearing,
Defendant had no physical or mental health problems, no signs of alcohol or drug use and was not
married. The Defendant was an active member of his church and other charitable and community
organizations. Twenty-five letters included with his application attested to his good character and
extensive church and community involvement. Also, Defendant had no prior arrests or convictions,
except for speeding tickets, one in November 1997 and the other in May 1996.

        The record further reflects that Defendant cooperated with authorities while at the scene of
the incident which resulted in the criminal charges. Defendant also offered to pay restitution to the
victim’s family through his automobile liability insurance. Further, the record from the hearing of
Defendant’s petition indicates that defense counsel advised his client not to provide a personal
statement concerning the circumstances surrounding his prior speeding tickets or the present offense
to the Department of Correction officer conducting the pretrial investigative report. Defense counsel
felt that the letters from friends and family would show that “there’s no question that this man
[Defendant] is as remorseful as a person could be as a result of the tragic events that occurred that
are the basis of this prosecution.”

       In denying the application for pretrial diversion, the District Attorney General, in a written
response, gave the following reasons:

                   We have considered your application for Diversion. . . .and after
           carefully weighing the evidence. . . .with the letters submitted by you from
           friends and relatives and the pretrial investigation report, I have decided that
           granting diversion would not serve the needs of the community nor the ends
           of justice for the following reasons:

                   It appears from the letters. . . . that Mr. Shands is a very likeable
           young man of good moral and social conduct. It is further apparent that Mr.
           Shands lacks any significant criminal history other than some speeding
           violations in November of 1997 and May of 1996. Mr. Shands [sic]
           attendance at Union University again is in his favor; along with his
           employment record. However, I have concluded that no great weight should
           be given to these factors as they are expected of every individual espousing
           good citizenship.


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                   I take note there is no remorse from your client although he has had
           several opportunities to state his remorse.

                    I also note Mr. Shands [sic] prior violations are for speeding at rates
           that are substantially greater than the posted limits. It is my opinion that
           although these infractions in and of themselves are minor they are strong
           proof Mr. Shands has had opportunities to learn of the serious consequences
           of driving irresponsibly. . . . It is this attitude and failure to learn and conform
           his actions through less restrictive punishments that cause me to believe that
           had Mr. Shands learned these prior lessons about responsible driving that the
           precious lie [sic] of a seven-year-old girl would have [sic] spared. I placed
           great weight on the serious nature and consequences of the crime for which
           Mr. Shands has been indicted. Indeed the taking of human life especially a
           life of child must be given great weight.

                   . . . I feel that the gravity of the offense, the need to deters [sic]
           irresponsible driving in Jackson and Madison County which in the last few
           years has resulted in numerous deaths . . . that lives are at risk when a person
           chooses to ignore or neglects safe driving principles, compels my decision
           that the needs of the community and that the ends of justice require that Mr.
           Shands be prosecuted and that the more restrictive measures of our judicial
           system are necessary to impress upon Mr. Shands the compelling need of
           responsible driving and the dire consequences of neglecting the public safety.

       Defendant sought review of the District Attorney General’s decision by filing a Petition for
Writ of Certiorari in the trial court. After hearing argument of counsel, the trial court ruled:

           That the aforementioned Petition should be denied, due to the fact that the
           District Attorney General gave due consideration to all things submitted
           before deciding that diversion was not appropriate. Therefore, after a
           thorough review of statutory and case law and consideration of all things
           submitted the Court does not find that the District Attorney General abused
           his discretion in denying diversion. . . .

        The trial court subsequently granted Defendant’s Motion for Interlocutory Appeal. We
granted the Defendant's application for permission to appeal to review whether the trial court erred
in finding that the District Attorney General had not abused his discretion in denying Defendant
pretrial diversion.




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                                        II. Denial of Diversion

        The decision to grant or deny an application for pretrial diversion is within the discretion of
the prosecuting attorney. Tenn. Code Ann. § 40-15-105; State v. Curry, 988 S.W.2d 153, 157 (Tenn.
1999). In making this determination, the prosecutor should

        focus on the defendant’s amenability to correction. Any factors which tend to
        accurately reflect whether a particular defendant will or will not become a repeat
        offender should be considered. Such factors must, of course, be clearly articulable
        and stated in the record in order that meaningful appellate review may be had.
        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 defendant where appropriate, and the likelihood that pretrial diversion will serve
        the ends of justice and the best interest of both the public and the defendant.

Curry, 988 S.W.2d at 157 (quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997) and
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The prosecutor’s response must be in
writing, must list the evidence considered, and must point out any factual discrepancies between the
evidence upon which the prosecutor relied and what was presented in the defendant’s application.
Curry, 988 S.W.2d at 157. The response must discuss the factors considered by the prosecutor and
the weight given to each factor. Id. “That a defendant, obviously, bears the burden of demonstrating
suitability for diversion does not relieve the prosecutor’s obligation to examine all of the relevant
factors and to set forth the required findings.” Id.

        The decision of the prosecutor to grant or deny pretrial diversion is presumptively correct and
will not be set aside absent an abuse of discretion. Id. at 158; Hammersley, 650 S.W.2d at 356. In
reviewing the prosecutor’s denial of pretrial diversion, the trial court may consider only that evidence
considered by the prosecutor. Curry, 988 S.W.2d at 158. In order to find an abuse of discretion, the
trial court must find that the record lacks substantial evidence supporting the prosecutor’s
determination. Id.

         This court has stated that on appeal, the trial court’s factual determinations will be overturned
only if the evidence preponderates against them. State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim.
App. 1993); State v. Helms, 720 S.W.2d 474, 476 (Tenn. Crim. App. 1986). In Curry, our supreme
court applied the preponderance of the evidence standard for review of the trial court’s decision
regarding the prosecutor’s abuse of discretion, rather than limiting this standard to the trial court’s
factual findings. Curry, 988 S.W.2d at 158 (citing Pinkham, 955 S.W.2d at 960). Thus, the trial
court’s determination that the prosecutor has or has not abused his or her discretion is a legal
conclusion, not binding upon the appellate court. Carr, 861 S.W.2d at 856. When the facts are
undisputed, the underlying issue that this Court must determine on appeal remains whether, as a
matter of law, the prosecutor abused his or her discretion in denying pretrial diversion. Carr, 861
S.W.2d at 856; State v. Brooks, 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997); State v. Morgan,
934 S.W.2d 77, 82 (Tenn. Crim. App. 1996); see State v. Houston, 900 S.W.2d 712, 714 (Tenn.


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Crim. App. 1995) (limiting the appellate court’s role to determining whether any substantial
evidence supports the prosecutor’s denial of pretrial diversion in light of the relevant factors); State
v. Helms, 720 S.W.2d 474, 476 (Tenn. Crim. App. 1986) (reversing the trial court’s finding of abuse
of discretion because the facts were undisputed and substantial evidence in the record supported the
prosecutor’s denial of pretrial diversion).

        Here, Defendant contends that the District Attorney abused his discretion in denying the
application for pretrial diversion because the District Attorney failed to consider all of the relevant
factors. The Defendant argues that the reasons provided in the denial letter mainly relate to the
seriousness of the offense and the need for deterrence. Specifically, he asserts that the District
Attorney did not give proper weight to his lack of a prior criminal record, his community and church
involvement, or his physical and mental condition before and after the offense. The State contends
that the District Attorney did consider and weigh all of the relevant factors, but that he merely came
to a different conclusion than the Defendant regarding their weight. We will analyze each factor
discussed in Curry separately.

A. Defendant’s Criminal Record

         The Defendant challenges the District Attorney’s denial of diversion based upon a need for
individual or specific deterrence. Individual deterrence is a relevant consideration, Hammersley,
650 S.W.2d at 354, which must be supported by the record. State v. Kirk, 868 S.W.2d 739, 743
(Tenn. Crim. App. 1993). Additionally, the prosecutor may properly consider evidence of criminal
behavior to deny diversion. See State v. Beverly, 894 S.W.2d 292, 293 (Tenn. Crim. App. 1994).
The Defendant argues that since he has no prior criminal record, absent two speeding tickets, and
there is nothing else in his record indicating a pattern of reckless or criminal behavior, then specific
deterrence is not needed. However, at Defendant’s hearing, the State argued that the Defendant had
failed to make the District Attorney aware of the circumstances surrounding the two speeding tickets.
Therefore, the District Attorney could only assume that the payment of fines and court costs were
not sufficient to deter Defendant’s speeding and reckless driving. Given the nature of this incident,
we find that the two speeding tickets combined with the prosecutor’s concern for the rising number
of death’s in Madison County resulting from “irresponsible” driving, constituted the substantial
evidence needed to support the prosecutor’s denial of pretrial diversion.

        Further, the defendant bears the burden of providing the prosecutor “with sufficient
background information and data to enable that officer to make a reasoned decision to grant or deny
the relief sought.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The applicant should
provide the prosecutor with evidence relating to the relevant factors and may include affidavits and
character letters. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. 1993). The parties may supplement
this information with a pretrial investigative report, but this report does not detract from the
defendant’s responsibility to show that he is a suitable candidate for diversion. Herron, 767 S.W.2d
at 156. In filing the petition for a writ of certiorari, the defendant should include the record as it
stands at that point, including the completed application for pretrial diversion. Winsett, 882 S.W.2d
at 810. The record before us does not contain the application for diversion. The record does contain


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letters from defense counsel, in which counsel asked the District Attorney whether he needed
additional information to help him make a decision. It does not appear that the prosecutor requested
further information. The District Attorney, based upon the information he possessed, reasoned that
Defendant’s history of excessive speeding deserved great weight, given the nature and circumstances
of this case. Such reasoning was not improper.

B. Defendant’s Social History

         Defendant offered 25 letters from friends, teachers, pastors, church members, employers and
parents attesting to his good character and various church and community involvement. Also, the
Defendant provided the District Attorney with information about his attendance at Union University
where he was majoring in Theology. The District Attorney’s denial letter acknowledged Defendant’s
letters and Defendant’s extensive involvement with his church, but found that Defendant’s social
history warranted little weight, because such behavior is “expected of every individual espousing
good citizenship.” Thus, the District Attorney properly addressed this factor, but chose not to give
it significant weight.

C. Physical and Mental Condition of Defendant

         Defendant also challenges the District Attorney General’s conclusion that the Defendant
showed “no remorse.” However, the record reflects that Defendant’s counsel advised him not to
give a statement to the pretrial invesitgator, whose findings were to reviewed by the District Attorney
General. At the hearing, defense counsel explained that Defendant’s remorse could be gleaned from
many of the character letters presented to the District Attorney. Again, the application for pretrial
diversion is not in the record, and there may have been something in that application, or something
omitted from that application, which led the District Attorney to conclude that Defendant lacked
remorse for his actions.

D. Likelihood Diversion Will Serve the Ends of Justice

        The Defendant appears to be a favorable candidate for pretrial diversion; however, the focus
of diversion does not rest solely upon the alleged offender. In appropriate cases, the circumstances
of the offense and the need for deterrence may outweigh all other relevant factors and justify a denial
of pretrial diversion. Carr, 861 S.W.2d at 855. In this case, the District Attorney General denied the
Defendant diversion based upon the need to deter others from committing similar offenses. This
court has repeatedly held that the deterrent effect of punishment upon other criminal activity is a
factor which the district attorney should consider. See generally, Hammersley, 650 S.W.2d at 355;
Kirk, 868 S.W.2d at 743 Indeed, we have previously observed that “[d]eterrence, both specific and
general, are admirable goals of a prosecutor's office in determining how to exercise its vast
discretion. Before applicable, however, there must be a showing of need.” Kirk, 868 S.W.2d at 743.

       Here, the District Attorney General, after considering all other relevant factors, stated that
there was a “need to deter irresponsible driving in Jackson and Madison County, which in the last


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few years has resulted in numerous deaths.” Again, the need for deterrence, alone, may justify the
denial of diversion, when all of the relevant factors have been considered. See Curry, 988 S.W.2d
at 158. Moreover, no one is in a better position to be informed of criminal activity within a
jurisdiction than the District Attorney General. State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim.
App. 1983).

                                          III. Conclusion

         Upon review of this case, the record provides substantial evidence to affirm the trial court's
decision that the District Attorney General did not abuse his discretion in denying pretrial diversion.
The District Attorney clearly articulated both the favorable and unfavorable factors he considered
in making his decision. The District Attorney properly exercised his discretion to give greater weight
to the circumstances of the offense and the need for deterrence. The evidence supports the District
Attorney’s decision; therefore, neither the trial court nor this Court may substitute its judgment for
that of the District Attorney. The judgment of the trial court is AFFIRMED.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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