         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 17, 2001 Session

                STATE OF TENNESSEE v. THOMAS L. CONDRA

             Interlocutory Appeal from the Circuit Court for Sequatchie County
                           No. 3951       Buddy D. Perry, Judge

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                    No. M2000-02864-CCA-R9-CD - Filed February 5, 2002

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The Defendant, who was charged with vehicular homicide and failure to yield right of way, filed
a petition for writ of certiorari to review district attorney's denial of pretrial diversion. The trial
court found that district attorney general did not abuse his discretion in denying pretrial
diversion. We affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAM S, J., delivered the opinion of the court, in which GARY R. WADE , P.J.,
and JOSEPH M. TIPTO N, J., joined.

Jerry B. Bible, Jasper, Tennessee, for the defendant, Thomas L. Condra.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney
General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The Defendant Thomas L. Condra was indicted by a Sequatchie County Grand Jury on
January 24, 2000, charging him with one count of vehicular homicide and one count of failure to
yield right of way. The defendant filed an application for pretrial diversion on May 22, 2000,
which the district attorney general denied on June 1, 2000. The defendant then filed a petition
for writ of certiorari in the trial court on June 19, 2000, and an amended application for diversion
on July 26, 2000.

       On July 25, 2000, the State again denied the defendant’s request for pretrial diversion.
After conducting a certiorari hearing on the defendant’s application, the trial court entered a
memorandum opinion on September 6, 2000, wherein the court concluded that the district
attorney general did not abuse his discretion in denying the defendant pretrial diversion.
        The defendant filed a motion for Rule 9 interlocutory appeal on October 23, 2000, which
the trial court granted. This Court granted the defendant’s Rule 9 application for permission to
appeal on December 12, 2000. The defendant’s sole contention on appeal is that the district
attorney general abused his discretion by denying the defendant’s request for pretrial diversion.

                                                Facts

        On July 7, 1999, at approximately 4:45 a.m., the defendant, a commercial truck driver,
was driving a 1991 Flatliner TT tractor and trailer. The defendant began to exit the driveway of
a trucking company and turned left onto Highway 28, an undivided, two-lane highway with no
apparent hazards. The defendant’s vehicle was struck at his left front steering axle by a small
car driven by Ms. Judy Carr Oliver. The defendant suffered a slight head injury as a result of the
collision. Ms. Oliver was killed in the collision.

                              The Applications for Pretrial Diversion

       On May 22, 2000, the defendant submitted his first application to the district attorney
general for pretrial diversion. In the first application, the defendant was asked if he was ever
“detained, held, arrested, indicted or summoned into court” for a violation of any law. The
defendant’s first application only included the current charges of failure to yield and vehicular
homicide.

        On June 1, 2000, the district attorney general denied this application for several reasons.
In his denial letter, the district attorney general noted that the defendant did not list all arrests or
summons including minor traffic offenses, and this constituted untruthful behavior when the
defendant submitted the application. The district attorney general noted that the defendant
“repeatedly violated the speed laws” and was involved in several accidents indicating an
“ongoing pattern” of traffic law violations. The district attorney general also refused diversion
because in the instant case, the defendant tried to “‘beat’ another vehicle when safety dictated
waiting a moment” to allow the victim to pass. Lastly, the district attorney general refused
diversion contending that drivers of tractor trailers owe a higher degree of care to the public and
that the defendant’s breach of this higher duty caused the death of the victim.

       Thereafter, the defendant submitted an amended application for pretrial diversion on July
24, 2000, containing admissions regarding the previously undisclosed information, including
four previous speeding violations, the defendant’s involvement in a minor rear-end accident, and
the suspension of the defendant’s license for driving an overweight tractor trailer. The
application also noted that the defendant was involved in another minor traffic accident in
January of 1999 when, while attempting to pass on a single lane gravel road, the trailer of the 18-
wheeler struck a portion of a pickup as the two were passing each other. Additionally, the
defendant asserted that the victim of the instant case was speeding at the time of the accident.

       The district attorney general also denied this application on July 25, 2000. The district
attorney general stated that the overall speed of the victim was not known and would only be
applicable in a civil action and was thus wholly irrelevant in the current prosecution. The State
also expressed concern due to the fact that the information provided in the defendant’s amended

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application was available to the defendant when the first application was submitted. Lastly, the
district attorney general stated that the defendant, in his amended application, was simply trying
to explain the differing and conflicting stories he had thus far rendered concerning the facts of
the accident.

                                   Findings of the Trial Court

        After the prosecution’s second denial for pretrial diversion, the trial court conducted a
certiorari hearing. The court entered a memorandum opinion on September 6, 2000, wherein it
stated the district attorney general did not abuse its discretion in denying pretrial diversion.

         The trial judge set forth several reasons for denying the defendant’s request for Writ of
Certiorari. First, the district attorney general considered all appropriate factors in making his
determination, and the decision “could have gone either way.” Second, the defendant’s driving
record, when considered together with the circumstances of this case, is substantial evidence to
support the district attorney general’s discretionary decision. Third, various arguments asserted
by the defendant regarding the victim’s actions at the time of the accident, as well as a claim of
selective prosecution on behalf of the district attorney general, are issues that should be asserted
at trial or in separate motions. Accordingly, the trial court found the district attorney general
acted within his discretionary powers. Thus, the Writ of Certiorari was denied.

                                             Analysis

       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 avoid future criminal
charges. See Tenn. Code Ann. § 40-15-105. This relief is extraordinary in nature and places the
burden of proof upon the defendant. 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). Pretrial diversion can
only be granted when authorized by statute. State v. Brooks, 943 S.W.2d 411, 412 (Tenn. Crim.
App. 1997); see also Tenn. Code Ann. § 40-15-105(b)(2)(C).

        The decision to grant or deny an application for pretrial diversion is within the discretion
of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see also State v. Pinkham,
955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App.
1995). In making the determination, the district attorney general must consider
        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 . . . . 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.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also State v. Washington, 866
SW.2d 950, 951 (Tenn. 1993). Additionally, deterrence, of both the defendant and others, is a



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factor the importance of which varies according to the individual circumstances of each case.
Hammersley, 650 S.W.2d at 354.

        A prosecutor’s decision to deny diversion is presumptively correct, and the trial court
should only reverse that decision when the defendant establishes a patent or gross abuse of
discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App. 1996); Houston, 900 S.W.2d
at 714. The record must be devoid of any substantial evidence to support the district attorney
general’s decision before an abuse of discretion can be found. Pinkham, 955 S.W.2d at 960;
State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993). The hearing court must consider
only the evidence made available to and considered by the prosecutor. Poplar, 612 S.W.2d at
500. The trial court may not substitute its judgment for that of the district attorney general when
the evidence supports the decision of the district attorney general. State v. Watkins, 607 S.W.2d
486, 488 (Tenn. Crim. App. 1980).

        The state correctly points out that this Court previously stated, “the circumstances of the
offense and the need for deterrence may outweigh all other relevant factors and justify a denial
of pretrial diversion.” Houston, 900 S.W.2d at 715.

        In this case, the record shows that the district attorney general considered the relevant
factors and specifically related his decision and the reasoning underlying that decision to the
defendant. The district attorney general expressed concern over a statement allegedly made by
the defendant to officers at the scene that he saw a vehicle approximately one-half mile away
and that he believed he could “beat it.” The record also reflects that the defendant has a history
of speeding violations. The district attorney general asserts that this type of conduct is exactly
that which must be deterred by not granting pretrial diversion. There is substantial evidence in
the record to support such a decision.

        In an appeal from the denial of pretrial diversion, if the facts are disputed and the trial
court conducts an evidentiary hearing to resolve the factual issues, the findings of fact made by
the trial court are binding upon this Court. State v. Helms, 720 S.W.2d 474, 476 (Tenn. Crim.
App. 1986). 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);
Helms, 720 S.W.2d at 476. In State v. Curry, our supreme court applied the preponderance of
the evidence standard to the 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. 988 S.W.2d
153, 158 (Tenn. 1999) (citing Pinkham, 955 S.W.2d at 960).

        A major factor in denying pretrial diversion is the defendant’s lack of candor regarding
the information in his application for pretrial diversion. We note that a prosecutor may not deny
diversion based purely upon a defendant’s failure to admit guilt. State v. James M. Lane, Jr.,
No. E1999-00615-CCA-R9-CD, Hamilton County, slip op. at 8 (Tenn. Crim. App. June 1,
2000). On the other hand, if the failure to admit the offense reveals a lack of candor or remorse,
such could be a proper basis for denying pretrial diversion. Id.; see State v. Nease, 713 S.W.2d
90, 92 (Tenn. Crim. App. 1986) (holding the defendant to be a poor candidate for diversion
because he was not completely truthful about what occurred and did not accept full
responsibility).

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       It is the defendant’s responsibility to provide the prosecuting attorney with as complete
an application as circumstances warrant, including sufficient background information and data to
enable the prosecutor to make a reasoned decision to grant or deny pretrial diversion. State v.
Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993); State v. Herron, 767 S.W.2d 151, 156
(Tenn. 1989).

        In the instant case, the record reflects that defendant’s initial application for pretrial
diversion does not contain previous traffic citations and auto accidents involving the defendant.
There is also some dispute over what the defendant stated regarding his version of the events on
the day of the accident. This Court is of the opinion that the lack of candor by the defendant is
enough to substantiate a denial of pretrial diversion by the district attorney general.

        Finally, as previously stated, the trial judge found that the district attorney general
evaluated all relevant factors in the pretrial diversion application and specifically set forth the
reasons for denying pretrial diversion. He also found that the district attorney general did not
abuse his discretion in denying pretrial diversion. The evidence preponderates in favor of the
trial judge’s opinion. The defendant has failed to demonstrate that the district attorney general
exhibited a patent or gross abuse of discretion, and we therefore affirm the judgment of the trial
court.

                                        CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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