                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                 October 2, 2012 Session

             SIDNEY S. STANTON III v. STATE OF TENNESSEE

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Warren County
                     No. M-12220      E. Shayne Sexton, Judge


                No. M2010-01868-SC-R11-CD - Filed January 23, 2013


The defendant was indicted on sixteen counts of animal cruelty for intentionally or
knowingly failing to provide necessary food and care to horses on his farm in Warren
County. The defendant applied for pretrial diversion, but the assistant district attorney
general, acting for the district attorney general, determined that the defendant was not an
appropriate candidate for pretrial diversion. The defendant filed a petition for writ of
certiorari seeking a review by the trial court. The trial court found no abuse of
discretion. The Court of Criminal Appeals affirmed. We granted the defendant’s application
for permission to appeal. Finding no abuse of discretion, we affirm.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Affirmed

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., J ANICE
M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, JR., JJ., joined.

Christopher Brent Keeton, Manchester, Tennessee, for the appellant, Sidney S. Stanton III.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Brent C. Cherry, Senior Counsel; Lisa S. Zavogiannis, District Attorney General; and Joshua
T. Crain, Assistant District Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                I. Facts and Procedural History

       On September 11, 2009, Sidney S. Stanton III was indicted on sixteen counts of
animal cruelty, a class A misdemeanor. The indictments alleged that he had intentionally or
knowingly failed unreasonably to provide necessary food, water, care, or shelter for certain
specified horses in his custody in violation of Tennessee Code Annotated section 39-14-
202(a)(2) (2006). Stanton pleaded not guilty and filed an application for pretrial diversion
pursuant to Tennessee Code Annotated section 40-15-105(a)(1)(A) (2006). In his
application, Stanton stated that he was fifty-five years old, married with no children, and a
college graduate. He had no prior criminal convictions, had been self-employed as an oil
distributor since 1978, and was a long-time member of the Warren County Saddle
Club. Stanton provided the following factual explanation:

               A lot of the horses that are were [sic] my property were in an ill
               state when I received them. I tried to nurse and care for the
               horses, some of whom were old, back to health. I received the
               horses and took care of them when others would not take care of
               them. In several cases, the only alternatives would have been
               that the prior owners of the horses would have had to shoot them
               or euthanize them. I did not take care of these horses for money
               or recognition. I actually lost money by having to spend money
               to take care of these horses. I took horses in because of my love
               for the horses.

Twenty-one letters of support are attached to the application, extolling Stanton’s good
character and describing him as a person who has concern for the welfare of animals.

       In a six-part written response, the assistant district attorney general denied the
application and enumerated the reasons for his decision that Stanton was not an appropriate
candidate for pretrial diversion. First, the assistant district attorney general set forth the facts
on which he relied. On July 15, 2009, after receiving notification that there were dead horses
on Stanton’s farm on Bluff Springs Road in Warren County, the Tennessee Department of
Agriculture (TDA) sent TDA Investigator Marshall Lafever to the farm. After discovering
two dead horses on the farm, Lafever instructed Stanton to bury the horses and advised him
that he would be checking back to ensure that the horses had been buried.

       When Lafever returned to the farm the next day, he found that instead of being buried,
the horses had been moved to the back part of the farm. He also saw that two more horses

                                                -2-
were down and that several more horses appeared to be in very poor health. Lafever
contacted a TDA veterinarian and the Warren County Sheriff’s Department. A Sheriff’s
Department investigator came to the farm and, upon observing horses in poor condition,
secured a search warrant for the farm. The search warrant, executed later that same day,
revealed the decomposed remains of two dead horses in the field and two horses that were
so ill they had to be euthanized. Between forty-seven and fifty-two horses were found on the
sixty-five acre farm, twelve of which had a Body Condition Score (“BCS”) of one or two
with the lowest possible score being one. Warren Barry of the Warren County Extension
office concluded that the horses’ neglect was caused by overpopulation and lack of adequate
forage and feed.

        Melvin Lee Lazzara, who had worked for Stanton on the farm from September 2006
through March 29, 2009, was questioned. Lazzara told investigators that during the time he
worked on the farm, he had fed the horses three bags of feed per day and that three or four
horses had died on Stanton’s home farm. After quitting in March, he had only returned to
Stanton’s Bluff Springs Road farm on two occasions; once during the week of July 5, 2009,
to put out three bags of food and once on July 15, 2009, to pull off two dead horses. Lazzara
did not know who had fed the horses after he quit in March 2009. He noted that when he fed
the horses, the more aggressive horses would eat and fight off the other horses who were
attempting to access the feed.

       On July 16, 2009, Stanton was allowed back on the farm with a backhoe to bury six
dead horses. On the same evening, an animal rescue group arrived with a load of hay that
was spread for the remaining horses. Stanton allowed investigators to have continued access
to his farm on Bluff Springs Road and his home farm. While at Stanton’s home farm,
investigators saw numerous dogs tied to farm implements and in dog runs. Many horses
were found on Stanton’s home farm, some of which were in the same or worse condition as
the horses on the Bluff Springs Road farm. On July 18, 2009, Stanton surrendered sixteen
horses from the Bluff Springs Road farm and seven horses from his home farm. Later, he
surrendered three more horses from his home farm. Stanton met with a representative of the
Humane Society of the United States (“Humane Society”) and discussed surrendering more
horses and his dogs but decided not to participate. The Humane Society representative also
found a source of horse feed that Stanton could buy at cost and twenty-five bales of hay, but
he refused the offer. A veterinarian examined the twenty-six horses surrendered by Stanton
and determined that they had a BCS of two or less. All were found to have an extremely
heavy parasite load; two had to be euthanized and one died.

       After describing in detail the circumstances giving rise to the charges against Stanton,
the assistant district attorney general discussed various factors he considered in arriving at
his decision to deny the application for pretrial diversion. Under “Defendant’s Social History

                                              -3-
and Health,” the response recited facts related to Stanton’s background and stated that
“significant weight was given to Stanton’s lack of criminal history and positive educational
background.” The assistant district attorney general also noted that Stanton’s references and
letters of support described him as “an honest and trustworthy individual and one who cared
deeply for animals.” The response, however, was mostly unfavorable to Stanton. It noted
that in 2007, ExxonMobil Oil Corporation (“ExxonMobil”) filed a lawsuit against Stanton’s
oil company alleging that after the company’s franchise agreement with ExxonMobil ended,
Stanton did not sell genuine Exxon fuel but deliberately set out to deceive consumers into
believing it was affiliated with ExxonMobil. An agreed judgment, signed by Stanton, was
entered in the amount of $250,000. The response also noted that Stanton has received
multiple letters from the Tennessee Department of Environment and Conservation (“TDEC”)
related to his failure to comply with underground storage tank regulations and that he had
incurred over $50,000 in civil penalties as a result of his non-compliance.

       Under the “Amenable to Correction” section, the assistant district attorney general
stated that Stanton had “routinely displayed an unwillingness to abide by rules and
regulations until he is forced to, and sometimes not even then.” To support his decision that
Stanton was not amenable to correction, the assistant district attorney general referenced
Stanton’s disputes with ExxonMobil and TDEC and his failure to bury the dead horses on
his property as instructed until he was threatened with arrest. The response also noted that
because Stanton had not accepted responsibility for the dead horses and blames others, he
was likely to be a repeat offender.

       Under the “Interests of the Public and Defendant” section, the assistant district
attorney general concluded that pretrial diversion would not be in the public’s best
interest. The response noted a correlation between public sentiment and the legislature’s
enactment of Tennessee Code Annotated section 39-14-202, which provides that a person
who “fails unreasonably to provide necessary food, water, care or shelter for an animal in the
person’s custody” should face punishment. The response cited to proposed legislation to
amend the statute penalizing aggravated cruelty to companion animals, to all
animals. Addressing Stanton’s interest in not being granted pretrial diversion, the response
noted that Stanton was unwilling to surrender his remaining animals and that if he is not held
accountable for his animal care practices, “he will find himself again facing troubles.”

       In the next section, captioned “Deterrent Effect,” the assistant district attorney general
asserted a correlation between animal abuse and crimes against humans and found that
granting diversion would send a message that the harmful treatment of animals will not be
“scrutinized.” The assistant district attorney general also noted that Stanton’s “refusal to
admit any wrongdoing negates the concept of deterrence” and that “[i]t is impossible to deter
behavior in another when that person sees nothing wrong with their [sic] actions.”

                                               -4-
       Finally, under the “Serving the Ends of Justice” section, the assistant district attorney
general concluded that granting pretrial diversion would not serve the ends of justice. He
noted that Stanton “has maintained his actual innocence and refuses to acknowledge any
wrongdoing, choosing instead to blame others for his troubles and vicariously calling into
question the motivation of those seeking to perform the law.” The assistant district attorney
general stated he “places great weight on this factor and submits that the ends of justice
cannot be achieved when the Defendant steadfastly refuses to accept responsibility for his
actions, shows no contrition, and instead relies solely upon his reputation in an effort to
obtain favorable treatment.”

       In conclusion, the assistant district attorney general stated that he had considered all
the positive and negative factors and concluded that the factors against granting pretrial
diversion outweighed those in favor of granting pretrial diversion.

       Upon the denial of his application for pretrial diversion, Stanton petitioned the Warren
County Circuit Court for a writ of certiorari upon grounds that the assistant district attorney
general had abused his discretion in denying the application by basing his denial on irrelevant
factors, failing to consider relevant factors favorable to Stanton, and failing to assign weight
to evidence that was submitted. The trial court, after reviewing the pleadings and hearing
argument of counsel, denied the petition, finding that the assistant district attorney general
did not abuse his discretion. On interlocutory appeal, the Court of Criminal Appeals found
no abuse of prosecutorial discretion and affirmed the judgment of the trial court. State v.
Stanton, No. M2010-01868-CCA-R9-CD, 2012 WL 76906, at *7 (Tenn. Crim. App. Jan. 10,
2012). Thereafter, we granted Stanton’s application for permission to appeal. After careful
review, we agree with the Court of Criminal Appeals that the assistant district attorney
general did not abuse his discretion in denying Stanton’s application for pretrial diversion
and that the trial court did not err in denying Stanton’s petition for writ of certiorari.

                                           II. Analysis

        The primary issue we address is whether the assistant district attorney general abused
his discretion in denying Stanton’s application for pretrial diversion. Stanton argues that the
assistant district attorney general abused his discretion by 1) giving undue consideration to
an irrelevant factor, 2) failing to consider all relevant factors in Stanton’s favor, and 3) failing
to state exactly what weight was assigned to each piece of evidence submitted in the case.

       Stanton applied for pretrial diversion pursuant to Tennessee Code Annotated section
40-15-105(a)(1)(A) (2006). Because Stanton was charged with a class A misdemeanor, he
was eligible for pretrial diversion. At the time of his application, a defendant was allowed
to seek pretrial diversion for any offense other than a Class A or Class B felony, certain Class

                                                -5-
C felonies, a sexual offense, driving under the influence, or vehicular assault. See id. § 40-
15-105(a)(1)(B)(i)(c).1

       To qualify for pretrial diversion, the applicant must not have had a disqualifying
conviction or previously been granted pretrial diversion for another offense. See id. § 40-15-
105(a)(1)(B)(i)(a); see also State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002). Stanton did not
have a disqualifying conviction or a previous pretrial diversion.

        Eligibility for pretrial diversion, however, does not give rise to a presumption of
entitlement to pretrial diversion. State v. McKim, 215 S.W.3d 781, 786 (Tenn. 2007) (citing
State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)). Rather, pretrial diversion is
“extraordinary relief,” State v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980)
(overruled in part by State v. Nease, 713 S.W.2d 90, 92 (Tenn. Crim. App. 1986)), within
the exclusive discretion of the prosecuting attorney. Bell, 69 S.W.3d at 176 (citing Curry,
988 S.W.2d at 157, and State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997)). In exercising
his or her discretion, the district attorney general must “focus[] on a defendant’s amenability
for correction and . . . consider[] all of the relevant factors, including evidence that is
favorable to a defendant.” Bell, 69 S.W.3d at 178. Objective factors that the district attorney
general is required to consider include the circumstances of the offense; the defendant’s
amenability to correction; any factors that tend to accurately reflect whether the defendant
will become a repeat offender; the defendant’s criminal record, social history, and physical
and mental condition; the need for general deterrence; 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. Richardson, 357 S.W.3d 620, 626 (Tenn. 2012); State v. Hammersley,
650 S.W.2d 352, 355 (Tenn. 1983). While each of these factors should be considered, the
circumstances of the offense and the need for deterrence “cannot be given controlling weight
unless they are of such overwhelming significance that they [necessarily] outweigh all other
factors.” McKim, 215 S.W.3d at 787 (alteration in original) (quoting State v. Washington,
866 S.W.2d 950, 951 (Tenn. 1993) (internal quotation marks omitted)).

         If diversion is granted, a qualified offender may enter into a memorandum of
understanding with a district attorney suspending prosecution for a maximum of two
years. Tenn. Code Ann. § 40-15-105(a)(1)(A). If the terms of the memorandum are adhered
to, at the end of the suspension period all pending charges must be dismissed with prejudice.


        1
          As amended in 2012, the statute now provides that pretrial diversion is also unavailable to a
defendant if the charged offense is “[a]ny misdemeanor offense committed by any elected or appointed
person in the executive, legislative or judicial branch of the state or any political subdivision of the state,
which offense was committed in the person’s official capacity or involved the duties of the person’s office.”
Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(f) (2012).

                                                     -6-
Id. § 40-15-105(e). “The self-evident purpose of pre-trial diversion is to spare appropriately
selected first offenders the stigma, embarrassment and expense of trial and the collateral
consequences of a criminal conviction.” Pace v. State, 566 S.W.2d 861, 868 (Tenn. 1978).

        If the district attorney general denies the application, the denial must be in writing and
must enumerate the factors considered with a factual basis provided for each factor and the
weight accorded to each factor. Richardson, 357 S.W.3d at 626. If there are any disputes
between the evidence relied upon by the district attorney general and the application filed by
the defendant, the denial must identify the issues. Id. A defendant may obtain review of a
denial of pretrial diversion by petitioning the trial court for a writ of certiorari for abuse of
prosecutorial discretion. Tenn. Code Ann. § 40-15-105(b)(3). The standard governing the
trial court’s review requires that it presume that the prosecuting attorney’s decision was
correct. Richardson, 357 S.W.3d at 627. The trial court is limited to examining the evidence
considered by the district attorney general. Bell, 69 S.W.3d at 177. The trial court may
conduct a hearing only to resolve factual disputes raised by the district attorney general or
the defendant; otherwise, it is limited solely to the evidence expressly considered by the
district attorney general as reflected in the statement of denial. Curry, 988 S.W.2d at
158. The prosecuting attorney is not required to introduce all the evidence that was relied
on in denying diversion but is “simply required to identify the factual basis and rationale for
the decision.” Pinkham, 955 S.W.2d at 960. If there is no dispute as to the factual basis for
the decision, the trial court may dispense with an evidentiary hearing and consider the matter
on the basis of the indictment, the defendant’s application for pretrial diversion, and the
prosecuting attorney’s response to the application. Id. In reviewing the decision, the proper
focus is not on the intrinsic correctness of the prosecuting attorney’s decision, but rather on
“the methodology employed.” Richardson, 357 S.W.3d at 627; McKim, 215 S.W.3d at
788. The trial court cannot re-weigh the evidence or substitute its own judgment for that of
the district attorney general. Richardson, 357 S.W.3d at 627.

        A prosecuting attorney abuses his or her discretion by failing to consider and articulate
all relevant factors, by considering and unduly relying upon an irrelevant factor, or by making
a decision that is unsupported by substantial evidence. Id. If the reviewing court determines
that the prosecuting attorney has abused his or her discretion for either of the first two
reasons, the court must vacate the denial and remand the matter to the prosecuting attorney
for further consideration of the application based on a proper assessment of all the relevant
factors. Id. If the denial was based on proper consideration of appropriate factors and not
on undue consideration of an irrelevant factor, but not supported by substantial evidence, the




                                               -7-
reviewing court may order that the defendant be placed on pretrial diversion and remand is
unnecessary. Id.2

        We begin by addressing Stanton’s argument that the assistant district attorney general
abused his discretion in denying Stanton’s application for pretrial diversion by considering
the following irrelevant evidence: 1) Stanton’s failure to accept responsibility for his actions;
2) a civil judgment and civil violations related to Stanton’s oil distributorship business; 3)
proposed legislation to amend Tennessee Code Annotated section 39-14-202 to broaden
aggravated cruelty to apply to all animals, including horses; and 4) Stanton’s failure to
surrender horses in his possession after it had been determined that there was probable cause
to believe that he had violated the animal cruelty statute. The basis of Stanton’s argument
is that none of this evidence had “[a]ny tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. We disagree and hold that each of these
factors was either relevant to the assistant district attorney general’s decision or, if irrelevant,
was not given undue consideration.

       Stanton first contends that the assistant district attorney general improperly considered
his unwillingness to admit any wrongdoing. In response to Stanton’s application for pretrial
diversion, the assistant district attorney general made various references to Stanton’s failure
to admit that he has done anything wrong, showing that this was a significant consideration
in the assistant district attorney general’s decision. First, in considering Stanton’s
amenability to correction, the response stated that




        2
          Throughout Richardson, we indicated that the critical questions on appellate review are whether
in denying an application for pretrial diversion, a district attorney general has failed to consider all relevant
factors or has given “undue consideration” to an irrelevant factor. Richardson, 357 S.W.3d at 627. We also
stated that vacation of the denial is appropriate if the district attorney general “has considered an irrelevant
factor.” Id. (citing McKim, 215 S.W.3d at 788). Although this latter language might be wrongly construed
to mean that the mere consideration of an irrelevant factor will warrant a finding of abuse of discretion, on
the contrary, it is the undue consideration of an irrelevant factor that is prohibited. Thus, in McKim, where
we found abuse of discretion where a prosecutor denied diversion to a defendant indicted for negligent
homicide based in part on the prosecutor’s irrelevant opinion that the availability of diversion in a negligent
homicide case was an “aberration of the law,” McKim, 215 S.W.3d at 785, we stated that the prosecutor’s
emphasis upon that irrelevant factor “so tainted his decision-making process as to constitute an abuse of
discretion.” Id. at 788 (emphasis added). We noted that “[t]he tone of the assistant district attorney general’s
written denial suggests that he will not grant pretrial diversion to any defendant charged with criminally
negligent homicide, regardless of the defendant’s personal circumstances and amenability to correction.” Id.
Thus, it was the prosecutor’s undue reliance on his own opinion that constituted an abuse of discretion.


                                                      -8-
              [a]fter execution of the criminal search warrant and the
              subsequent criminal investigation and indictment, the Defendant
              has maintained and vocalized to others that he has done nothing
              wrong and that he is simply being picked on. . . . Because the
              Defendant sees no wrongdoing on his behalf any efforts to
              ameliorate his behavior or attitude will be moot.

In considering the public interest, the assistant district attorney general’s response further
stated that “[t]he interests of the public will be better served if the Defendant accepts
responsibility for his actions and is held accountable, rather than be granted pre-trial
diversion with no admission as to wrongdoing and no avenue to prevent further
problems.” Next, in considering the matter of deterrence, the assistant district attorney
general’s response stated that “the defendant’s refusal to admit any wrongdoing negates the
concept of deterrence. It is impossible to deter behavior in another when that person sees
nothing wrong with their [sic] actions. Granting pre-trial diversion would support that
contention.” Lastly, in concluding that granting Stanton pretrial diversion would not serve
the ends of justice, the assistant district attorney general’s response stated as follows:

              [t]o date, the Defendant has maintained his actual innocence and
              refuses to acknowledge any wrongdoing, choosing instead to
              blame others for his troubles and vicariously calling into
              question the motivation of those seeking to enforce the
              law . . . . [A] grant of pre-trial diversion in this case, without any
              acknowledgment of wrongdoing or any mechanism in place to
              prevent future troubles relating to numerous animals in his
              possession would be tantamount to a dismissal. . . . The State
              places great weight upon this factor and submits that the ends of
              justice cannot be achieved when the Defendant steadfastly
              refuses to accept responsibility for his actions, shows no
              contrition, and instead relies solely upon his reputation in an
              effort to obtain favored treatment.

        Stanton contends that it is irrelevant that he is unwilling to admit any wrongdoing or
to accept responsibility for his actions and, therefore, the assistant district attorney general
abused his discretion. We agree with Stanton that he was not required to admit his guilt to
the animal cruelty charges in order to be granted pretrial diversion. Neither our pretrial
diversion statute nor previous case decisions require an admission of guilt. State v. Oakes,
269 S.W.3d 574, 578 (Tenn. Crim. App. 2006) (“[T]he failure of the defendant to admit guilt
is not, in and of itself, a proper basis for denying diversion.”); State v. Thompson, 189
S.W.3d 260, 268 (Tenn. Crim. App. 2005) (finding that prosecutor abused his discretion in

                                               -9-
requiring an admission of guilt as a prerequisite to pretrial diversion); State v. Lane, 56
S.W.3d 20, 29 (Tenn. Crim. App. 2000) (holding that pretrial diversion was improperly
denied where district attorney general “essentially required that defendant admit guilt” of
crimes charged and express regret); State v. King, 640 S.W.2d 30, 33 (Tenn. Crim. App.
1982) (“To require a plea of guilty prior to placement of a defendant on pre-trial diversion
would amount to supplanting [the pretrial diversion] program with probation, and would
totally defeat the legislative purpose of these statutes.”), abrogation on other grounds
recognized by State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983), as recognized by
State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).

        However, there is a critical distinction between confessing guilt to a crime and
accepting responsibility for wrongful conduct. Admitting that one’s conduct complies with
the elements of a criminal offense and accepting responsibility for wrongful conduct are not
necessarily synonymous. “Wrong” is defined as “not in accordance with an established
standard” or “not suitable or appropriate.” Webster’s New World Dictionary of the American
Language, College Edition 1688 (1966). A defendant may admit and assume responsibility
for wrongdoing without admitting that he or she has committed a crime. In this case, Stanton
was not required to admit that he violated Tennessee Code Annotated section 39-14-202 by
“intentionally or knowingly fail[ing] unreasonably to provide necessary food, water, care, or
shelter” for the horses in his care, but his failure to admit any wrongdoing or to accept any
responsibility for his actions was a relevant consideration in determining his qualification for
pretrial diversion.

        This Court has not directly addressed the issue of whether a defendant’s failure to take
responsibility for his or her conduct may properly serve as a basis for denying pretrial
diversion. In Bell, where the defendant was denied pretrial diversion after being charged
with vehicular homicide, we implicitly approved consideration of this fact. In Bell, we held
that a district attorney general’s failure to consider certain evidence in favor of the defendant
was an abuse of discretion, 69 S.W.3d at 180, but we noted that the district attorney general
properly relied on the defendant’s failure to take responsibility for his actions:

              The district attorney general denied pretrial diversion because
              [the defendant] failed to take responsibility for his actions, has
              a record of traffic offenses, acted recklessly, endangered persons
              other than the victims, and has an unstable work history. The
              district attorney general also cited a need to deter irresponsible
              driving by tractor-trailer drivers. The district attorney general,
              however, failed to consider evidence favorable to [the
              defendant], such as his honorable discharge from the United



                                              -10-
                States Army, stable marriage of thirteen years, high school
                diploma, and lack of a history of drug or alcohol abuse.

Id. at 177 (emphasis added). This language implies that the district attorney general
considered facts that would have properly supported denial of pretrial diversion, including
the defendant’s failure to assume responsibility for his actions; however, by failing to
consider evidence in the defendant’s favor, the district attorney general abused his
discretion. More directly, in State v. Nease, 713 S.W.2d 90 (Tenn. Crim. App. 1986), the
Court of Criminal Appeals specifically approved the district attorney general’s denial of
pretrial diversion on the basis of the defendant’s failure to accept responsibility for his
conduct after being indicted for going armed and shooting into an occupied apartment. The
Court of Criminal Appeals stated that the defendant’s “failure to be completely truthful about
what happened and to accept full responsibility for it makes him, in fact, a poor candidate
[for pretrial diversion.]” Id. at 91.

       In sum, a defendant’s unwillingness to admit wrongdoing and assume responsibility
for his or her actions is relevant in assessing a defendant’s amenability to correction and
whether pretrial diversion will satisfy the need for deterrence and serve the ends of justice.3

        Next, Stanton contends that evidence of a civil judgment and civil violations
pertaining to his oil distributorship business were irrelevant and should not have been
considered in determining his eligibility for pretrial diversion. The assistant district attorney
general relied on a lawsuit filed on January 26, 2007, by ExxonMobil in the United States
District Court for the Eastern District of Tennessee against Stanton Oil Company, Inc.
(“Stanton Oil”), a corporation of which Stanton was president. ExxonMobil’s complaint
alleged that after termination of a franchise agreement between the parties, Stanton Oil
continued to use ExxonMobil’s proprietary marks at its stations4 without ExxonMobil’s
permission with the intent to deceive consumers into believing that Stanton Oil was still
affiliated with ExxonMobil. Less than one month after the suit was filed, Stanton entered


        3
           In addition to pretrial diversion, Tennessee’s alternative sentencing scheme allows trial courts to
grant judicial diversion to qualified defendants. See Tenn. Code Ann. § 40-35-313. A principal distinction
between the two forms of diversion is that a defendant must be found or plead guilty before qualifying for
judicial diversion, id. § 40-35-313(a)(1)(B)(i)(a), whereas a defendant who maintains his or her innocence
may still qualify for pretrial diversion. Because the General Assembly has specifically declined to condition
pretrial diversion upon an admission of guilt, courts should carefully review pretrial diversion applications
in light of the circumstances of each case to ensure that the acceptance of responsibility does not amount to
a requirement of admitting guilt.
        4
         The final judgment shows that at the time Stanton Oil operated four stations in McMinnville
designated Stanton Exxon, Pit Stop East, Pit Stop North, and Pit Stop South.

                                                    -11-
into an agreed judgment on behalf of Stanton Oil agreeing that Stanton Oil’s “acts have been
malicious, fraudulent, deliberate, willful, intentional, and in bad faith, with full knowledge
and conscious disregard of ExxonMobil’s rights.” The judgment awarded ExxonMobil
$250,000 “as disgorgement of the profits from its infringing acts and breach of contract,
rectification of its unjust enrichment, and compensation to ExxonMobil for its actual
damages and attorney’s fees.” Although Stanton states that evidence of this civil action is
irrelevant, he presents no argument or supporting authority for this assertion. Instead, he
contends that the judgment came about because ExxonMobil, “the billion dollar giant,”
placed requirements on Stanton that he was financially unable to satisfy. This explanation
is unsupported by the record and is contradicted by the judgment in which Stanton agreed
that the suit was prompted by Stanton Oil’s unauthorized use of ExxonMobil’s proprietary
marks. The assistant district attorney general’s response to the application for pretrial
diversion correctly indicated that Stanton’s interaction with ExxonMobil5 is relevant in that
it displays a lack of respect for rules, regulations, and laws and reflects negatively on
Stanton’s amenability to correction.

        Stanton also argues that the assistant district attorney general improperly considered
evidence that he violated Tennessee Department of Environment and Conservation
(“TDEC”) regulations. The assistant district attorney general relied on Stanton’s failure to
comply with Tennessee petroleum underground storage tank regulations and that TDEC has,
from the mid-1990’s to the present, issued to Stanton numerous “Notice of Violation” letters
followed by “Enforcement Action Notice” letters. Because of Stanton’s persistent failure to
follow TDEC’s regulations, between February 2009 and February 2010, he incurred civil
penalties in the amount of $50,650. The assistant district attorney general considered an
affidavit signed by the manager of TDEC’s underground storage tanks division, reiterating
that Stanton has a record of failing to cooperate with TDEC and concluding that Stanton
“willingly refuses to follow the rules and regulations” of TDEC and “is not amenable to
correction.” While Stanton asserts that evidence of his failure to comply with the civil
regulations of TDEC is irrelevant to an application for pretrial diversion in a criminal case,
he fails to present an argument or authority in support of this assertion. Stanton’s interaction
with TDEC is relevant in that it, too, displays a lack of respect for rules, regulations, and
laws, reflects negatively on his amenability to correction, and was, therefore, properly




        5
          The judgment with ExxonMobil is against Stanton Oil, a legal corporate entity separate from
Stanton. Although Stanton could have taken issue with the assistant district attorney general’s reliance on
the ExxonMobil judgment by presenting evidence separating himself from the corporation and showing that
the corporation’s conduct should not be imputed to him as president under the circumstances, he did not, and
in the absence of objection or proof to the contrary, the assistant district attorney general did not abuse his
discretion by considering the ExxonMobil judgment.

                                                     -12-
considered by the assistant district attorney general in determining whether Stanton should
be granted pretrial diversion.

        Stanton further asserts that evidence of proposed legislation to amend Tennessee Code
Annotated section 39-14-212, which penalizes aggravated cruelty to companion animals, to
make it applicable to all animals, including horses, was irrelevant. The assistant district
attorney general considered this proposed legislation to be indicative of public sentiment with
respect to the protection of horses. We agree with Stanton that consideration of proposed
legislation to expand the aggravated cruelty statute was irrelevant. The proposed amendment
was not adopted by the legislature, and the mere introduction of a bill is not of itself
indicative of public support. It is, therefore, not relevant in assessing whether the public
would favor lenient treatment such as pretrial diversion in a case such as this one. However,
because the assistant district attorney general did not give undue consideration to this
evidence, we find no abuse of discretion in his consideration of it.

        Finally, Stanton contends that the assistant district attorney general abused his
discretion by placing weight on the fact that Stanton refused to surrender all of the horses in
his possession. The assistant district attorney general noted that a director of the Humane
Society advised Stanton that the Humane Society would accept as many horses as Stanton
was willing to surrender but that he ultimately declined this offer. Stanton argues that he
refused to surrender additional horses because some of the horses that he had already
surrendered were euthanized despite an understanding that they would not be. Stanton also
notes there was no finding of probable cause that the animal cruelty statute had been violated
with respect to many horses on his property. This argument fails because there is no
indication that this was a fact considered by the assistant district attorney general and even
if it had been, the assistant district attorney general did not give undue consideration to
Stanton’s refusal to surrender all of his horses.

        The next issue we address is whether the assistant district attorney general erred by
failing to consider all relevant evidence. In deciding whether a defendant is an appropriate
candidate for pretrial diversion, “the district attorney general has a duty to exercise his or her
discretion by focusing on a defendant’s amenability for correction and by considering all of
the relevant factors, including evidence that is favorable to a defendant.” Bell, 69 S.W.3d
at 178 (emphasis added). A decision must be reversed when a district attorney general denies
pretrial diversion “without considering and weighing substantial evidence favorable to a
defendant.” Id. at 179. “Substantial evidence” is “such pertinent or relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Schlickling v. Ga.
Conference Ass’n Seventh-Day Adventists, 355 S.W.2d 469, 499 (Tenn. Ct. App.
1962). Stanton argues that the assistant district attorney general abused his discretion by
failing to consider three matters in evidence that favored Stanton.

                                              -13-
       First, Stanton asserts that the assistant district attorney general failed to consider
Investigator Barry’s report concluding that a wooded area of the Bluff Springs farm provided
the horses with adequate shelter and that a freshwater spring on the property provided the
horses with adequate water. These facts, however, do nothing to offset the report’s
conclusion that Stanton’s neglect of his horses resulted from overpopulation and a lack of
adequate forage and feed. It is not evidence that a reasonable mind might accept as adequate
to support the conclusion that under the circumstances, Stanton would qualify as a candidate
for pretrial diversion.

       Next, Stanton contends that the assistant district attorney general should have
considered as favorable to Stanton the fact that he agreed to the judgment between
ExxonMobil and Stanton Oil less than one month after suit was filed because this shows that
he is amenable to correction when confronted with a wrong. We note, however, that the
compensation sought by ExxonMobil in its complaint against Stanton Oil included interest,
both pre-judgment and post-judgment, which would have increased until entry of judgment
and recovery of all damages. Thus, Stanton Oil and Stanton may have had a financial
incentive to expeditiously agree to and satisfy the judgment. The record, however, does not
contain enough information about the actions and dealings between the parties in the
ExxonMobil litigation to make a determination whether the agreed judgment between
ExxonMobil and Stanton reflects on his amenability to correction one way or
another. Accordingly, Stanton’s prompt agreement to judgment, in the absence of further
proof of the dealings between the parties, is not evidence that a reasonable mind might accept
as adequate to support the conclusion that he is amenable to correction and therefore a good
candidate for pretrial diversion.

        Finally, Stanton asserts that a December 4, 2009 letter to him from TDEC notifying
him that Stanton Oil was in violation of TDEC rules pertaining to underground storage tanks
stated “[t]he record reflects that, upon being notified, you performed the necessary actions
to address the violations and returned to compliance.” Stanton contends that the assistant
district attorney general abused his discretion by failing to consider this statement as
evidence in Stanton’s favor. We disagree. This statement does not constitute substantial
evidence favorable to Stanton. The assistant district attorney general’s response discussed
Stanton’s interaction with TDEC as follows:

              After interviewing Elwin Hannah, CFO UST in Cookeville the
              District Attorney General’s Office learned that TDEC has had
              consistent problems with the Defendant and his compliance with
              TDEC Rules and Regulations concerning his various gas
              stations for many years. A review of TDEC files concerning the
              Defendant revealed that the Defendant has been issued

                                             -14-
              numerous “Notice of Violation” letters detailing the Defendant’s
              failure to comply with the Tennessee Petroleum Underground
              Storage Tanks regulations. Several of those “Notice of
              Violation” letters were subsequently followed up by
              “Enforcement Action Notice” letters issued after the Defendant
              failed to come into compliance with the Tennessee Petroleum
              Underground Storage Tanks regulations. Further, records from
              TDEC show that the Defendant has persisted in his refusal to
              follow their Rules and Regulations to the point that he has been
              assessed civil penalties. From February 2009 through February
              2010 the Defendant has incurred $50,650.00 in civil penalties
              from TDEC for his failure to comply with the Tennessee
              Petroleum Undergound storage Tanks regulations. The year
              Febraury 2009 through February 2010 is indicative of the
              Defendant’s past with TDEC. The records review conducted by
              the District Attorney General’s Office includes “Notice of
              Violation” letters and “Enforcement Action Notice” letters from
              the mid 1990s through the present.

Attached to the assistant district attorney general’s response are four letters dated February
19, 2009; October 16, 2009; December 4, 2009; and February 22, 2010 from TDEC
addressed to Stanton Oil Company in care of Stanton. Each of the first three letters is
accompanied by a separate order assessing civil penalties against Stanton Oil Company for
TDEC rule violations with respect to underground storage tanks. The letter of February 19,
2009, advises Stanton that with respect to the “Stanton Oil Bulk Plant,” on February 12,
2008, TDEC inspectors discovered a rule violation for failure to properly operate and
maintain a corrosive protection system and assessed a civil penalty in the amount of
$1,500. The letter states that “[t]he record reflects that, upon being notified, you performed
the necessary actions to address the violations and returned to compliance.” The next letter,
dated October 16, 2009, notifies Stanton of three violations with respect to Stanton Oil’s Pit
Stop South facility discovered by TDEC inspectors on April 14, 2009—a violation for failure
to provide a proper release detection method for five underground storage tanks from January
2009 through April 2009 with an assessed penalty of $12,000; a violation for failure to keep
spill catchment basins clean and free of water with an assessed penalty of $250; and a
violation for failure to cooperate with TDEC by submitting requested documents in a timely
manner with an assessed penalty of $2500. This letter contains precisely the same language
quoted from the February 19, 2009 letter, recognizing that upon being notified that “[t]he
record reflects that, upon being notified, [Defendant] performed the necessary actions to
address the violations and returned to compliance.” The third letter, dated December 4,
2009, notifies Stanton of two violations discovered by TDEC inspectors on March 25, 2009,

                                             -15-
at Stanton Oil’s Pit Stop North facility—a violation for failure to provide a proper release
detection method for five underground storage tanks with an assessed penalty of $12,000 and
a violation for failure to cooperate with TDEC by submitting requested documents in a timely
manner with an assessed penalty of $2500. This letter also states that “[t]he record reflects
that, upon being notified, you performed the necessary actions to address the violations and
returned to compliance.” The fourth letter merely refers to an attached order and assessment
regarding Stanton Oil’s Volunteer Market facility. On March 25, 2009, TDEC inspectors
discovered a violation for failure to provide a proper release detection method and a violation
for failure to cooperate with TDEC by submitting requested documents showing compliance
with the release detection rule. The order also recites that TDEC sent an additional letter
requesting demonstration of compliance but that, as of the date of the order (February 22,
2010), TDEC had not received any documentation to demonstrate compliance. The order
assesses a total penalty of $19,900 for the violations and orders a cessation of operations of
the underground storage tank systems at the facility.

       In the context of these letters showing multiple violations of TDEC rules over a one-
year period and Stanton’s failure to cooperate by providing requested documentation, we do
not agree that the language targeted by Stanton regarding his compliance constitutes
substantial evidence of his amenability to correction. This is especially so given the
following attestation from the affidavit of TDEC employee Elwin Hannah, the manager of
the underground storage tanks division of TDEC’s environmental field office at the time
these letters were generated:

              [Stanton] is one of the more difficult operators that my
              department deals with and he has had multiple violations. He is
              frequently slow to correct said violations; that on at least five (5)
              occasions, if not more, there has been an Order and Assessment
              filed against [Stanton] and each has resulted in civil penalties
              being enforced against Mr. Stanton.

              It requires much more effort on our part to get [Stanton] to
              comply with the rules and regulations we enforce and he often
              refuses to do what he is instructed to do in order to come into
              compliance with the rules and regulations.

The letters show that Stanton failed to cooperate with TDEC by submitting requested
documentation showing compliance, and TDEC employee Hannah’s testimony shows that
Stanton has been generally uncooperative and reticent to comply. Therefore, we do not agree
that the language at issue constituted substantial evidence that the assistant district attorney



                                              -16-
general was required to extract from the context of each of the letters and consider in his
response to Stanton’s application for pretrial diversion.

       Finally, we address Stanton’s argument that the assistant district attorney general
abused his discretion because he failed to “accord weight to each piece of evidence either
supplied by the [Defendant] or obtained by the [district attorney general].” Stanton
misapprehends the required content of a district attorney general’s denial of an application
for pretrial diversion. As we noted in Richardson, the denial must be in writing and must
enumerate the factors considered with a factual basis provided for each factor and the weight
accorded to each factor. 357 S.W.3d at 626. The response must provide

              more than an abstract statement in the record that the district
              attorney general has considered these factors. Instead, the
              factors considered must be clearly articulable and stated in the
              record. 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.

Curry, 988 S.W.2d at 157 (citations omitted) (internal quotation marks omitted). This
standard requires that the denial enumerate the factors considered with a factual basis
provided for each factor and the weight accorded to each factor. Contrary to Stanton’s
argument, however, the assistant district attorney general was not required to set forth the
weight he assigned to each piece of evidence submitted. As we held in Pinkham, “the district
attorney general is simply required to identify the factual basis and rationale for the
decision,” and the information set forth must be of sufficient detail to apprise the defendant
of a factual dispute. 955 S.W.2d at 960.

        The assistant district attorney general’s response denying Stanton’s application for
pretrial diversion is set forth with sufficient particularity and, as required, lists evidence
considered, discusses the factors considered, and describes the weight accorded to each
factor. After describing the circumstances of the offense in detail, the assistant district
attorney general’s response discussed the factor of Stanton’s social history and health and
with respect to that factor, placed “significant weight” in Stanton’s favor on his educational
background and the fact he has no criminal record. This portion of the response also
acknowledged the many reference letters received in support of Stanton and discussed with
specificity the unfavorable circumstances of his interaction with ExxonMobil and
TDEC. The response next addressed Stanton’s amenability to correction and found that he
was “unwilling[] to abide by rules and regulations until he is forced to, and sometimes not
even then” as shown by his interaction with TDEC and ExxonMobil, his failure to bury the

                                             -17-
dead horses on his farm until threatened with arrest, and his unwillingness to admit any
wrongdoing. The response also placed “significant weight” on the factor of the interests of
both the public and Stanton. With respect to this factor, the response again acknowledged
the letters of support filed on behalf of Stanton, but concluded that the enactment of the
animal cruelty statute indicated a public sentiment that a person who knowingly and
unreasonably fails to provide necessary food to an animal in his or her custody should face
punishment. Additionally, noting that Stanton retained horses in his possession and that he
was unwilling to accept responsibility for his actions or admit wrongdoing, the response
concluded that “the interests of neither the public nor the defendant would be served by a
grant of pre-trial diversion.” The response also considered the factor of the effect of pretrial
diversion and deterrence and placed “great weight” on this factor. The response concluded
that pretrial diversion should be denied based on this factor given the district’s “strong stance
against animal abuse,” that a failure to prosecute would send a message that the harmful
treatment of animals will not be “scrutinized,” and that Stanton’s “refusal to admit any
wrongdoing negates the concept of deterrence.” Finally, the response considered whether
pretrial diversion would serve the ends of justice. The response placed “great weight” on this
factor and concluded that “the ends of justice cannot be achieved when Stanton steadfastly
refuses to accept responsibility for his actions, shows no contrition, and instead relies on his
reputation in an effort to obtain favored treatment.”

        In sum, the assistant district attorney general did not abuse his discretion in denying
Stanton pretrial diversion. The assistant district attorney general’s written response detailed
the reasons for denial, did not give undue consideration to an irrelevant factor, properly
considered all substantial relevant evidence in favor of Stanton, and properly set forth,
considered, discussed, and assigned weight to all factors that the assistant district attorney
general was required to consider. The evidence does not preponderate against the assistant
district attorney general’s determination that pretrial diversion should be denied.

                                        III. Conclusion

      We hold that the assistant district attorney general did not abuse his discretion in
denying Stanton pretrial diversion. Accordingly, the judgments of the trial court and the
Court of Criminal Appeals are affirmed. Costs on appeal are assessed to the appellant,
Sidney S. Stanton III, for which execution may issue if necessary.




                                                     _________________________________
                                                     SHARON G. LEE, JUSTICE



                                              -18-
