              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                              FEBRUARY 1999 SESSION
                                                           FILED
                                                              April 21, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )    C.C.A. NO. 02C01-9809-CC-00268
              Appellant,              )
                                      )    MADISON COUNTY
VS.                                   )
                                      )    HON. WHIT LAFON,
SHAUN MATTHEW DINWIDDIE,              )    JUDGE
                                      )
              Appellee.               )    (Pretrial Diversion)



FOR THE APPELLANT:                         FOR THE APPELLEE:


JOHN KNOX WALKUP                           CLIFFORD K. McGOWN, JR.
Attorney General & Reporter                113 North Court Square
                                           P.O. Box 26
DOUGLAS D. HIMES                           Waverly, TN 37185
Asst. Attorney General                           (On Appeal)
John Sevier Bldg.
425 Fifth Ave., North                      GEORGE GOOGE
Nashville, TN 37243-0493                   District Public Defender

JERRY WOODALL                              JOSEPH L. PATTERSON
District Attorney General                  Asst. District Public Defender
                                           227 West Baltimore St.
SHAUN A. BROWN                             Jackson, TN 38301
Asst. District Attorney General            (At Trial and Of Counsel on Appeal)
P.O. Box 2825
225 Martin Luther King, Jr., Dr.
Jackson, TN 38302




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                            OPINION



                The defendant was charged by indictment with possession with intent to sell

marijuana, possession with intent to deliver marijuana, and possession of drug

paraphernalia. The State denied the defendant pretrial diversion, a decision which the

trial court reversed after a hearing. The State now appeals, arguing that the trial court

erred in granting pretrial diversion to the defendant.1 Following a review of the record, we

reverse the trial court’s entry of pretrial diversion and remand the case for further

proceedings.



                According to the incident report in this case, the defendant’s car had been

reported in the past to be involved in drug deals. One evening, a police investigator

watched as the defendant, accompanied by three friends, drove to a convenience store

where he used a pay phone. The defendant then drove to an apartment complex and

parked near another car occupied by two individuals. While the defendant’s friends

waited in his car, the defendant climbed into the back seat of the other car.

Approximately one minute later, he returned to his car, carrying his wallet in his hand.

The defendant’s car was stopped a short while later. The defendant refused to give

consent for a vehicle search, but during a patdown for weapons, an officer discovered a

small baggie of marijuana and two packs of rolling papers in the defendant’s “groin area,”

and the defendant was arrested. While searching the defendant’s vehicle, officers found

another baggie of marijuana “behind the radio console area.” The total amount of

marijuana seized totaled approximately one ounce. A later strip search of the defendant

revealed a crack pipe inside his rectum.



                On February 20, 1998, the trial court entered an order, apparently upon the

        1
        Oral argum ents were heard in Dyersburg, Tennessee. Students of the Lake County, Dyer
County, and Dyersburg school system s attended at the invitation of this Court in an effort to educate
them about our judicial system .

                                                    2
defendant’s request, directing the parties to “explore the possibility of pre-trial diversion.”

The record, however, does not contain an application for pretrial diversion, any supporting

materials, or even any reference that the defendant filed a formal written application and

supporting materials.



              On March 16, 1998, the Tennessee Department of Correction filed its

pretrial diversion investigation report, which reflects that the defendant, who is single and

has no dependents, has no prior adult arrests or convictions. This report also reflects that

the defendant left high school after completing the eleventh grade because he was

missing too many school days, but he later obtained his GED and plans to continue his

education at a local community college. Apparently, the defendant had tried to enroll in

night classes, but could not because the classes he wanted were full. According to the

report, the defendant held various part-time, temporary jobs during summer and while he

was in school. In February 1998, the defendant was hired for a production/assembly-type

job paying $6.50 per hour, but he resigned three days later when he obtained work at

Lowe’s as a forklift operator for $10.00 per hour. According to the report, the defendant

had been living with his parents until recently, when he moved out and began renting an

apartment. Also included in this report was the defendant’s statement that he “has no

more involvement with marijuana” and wanted to participate in the pretrial diversion

program because he did not want a felony criminal record. The defendant also stated

that he submitted to a drug screen when he was hired for his first job in February 1998

and that he must pass a drug test at Lowe’s, too.



              By letter dated March 17, 1998, the district attorney general denied pretrial

diversion based upon his review of the pretrial diversion investigation report. The district

attorney general gave the following reasons for denying pretrial diversion:

       1.     The defendants [sic] crimes were not the result of impulse but
              required considerable effort and planning. State v. Holland, 661
              S.W.2d 91 (Tenn. Crim. App. 1983).

                                              3
       2.     The defendant has expressed no remorse for his conduct. State v.
              Nease, 713 S.W.2d 90.

       3.     The defendant has a poor work history indicating a serious lack of
              motivation to successfully complete pretrial diversion.

       4.     No family or friends are forthcoming to aid or encourage the
              defendant in any pretrial diversion program. Without such
              encouragement the defendant cannot hope to successfully complete
              pretrial diversion.

       5.     Possession and Sale of Narcotics are serious problems in this
              jurisdiction and allowing the defendant to participate in pretrial
              diversion would greatly undermine law enforcement efforts at
              curtailing this type of criminal activity State v. Holland.

       6.     The crimes involved trickery and deceit in that the defendant went
              to extraordinary lengths to hide contraband from the police.

       7.     There is no indication that the defendant would have stopped his/her
              criminal activity but for the intervention of law enforcement State v.
              Markham, 755 S.W. 2d 850.

       8.     The evidence indicates that the defendant has significant ties to the
              drug community in that he was able to contact any [sic] buy drugs
              without any apparent difficulty.

The defendant petitioned for a writ of certiorari, arguing that the district attorney general

abused his discretion.



              A certiorari hearing was held. At this hearing, the defendant testified he

was currently working at 84 Lumber and planned to attend college in the future. He

understood that if placed on the diversion program, he would have to abide by several

conditions. He stated that since his arrest, at which time he was eighteen years old, he

has “turned [his life] completely around,” has begun attending college, and has not

smoked marijuana. He further testified that he could have passed a drug test that very

day and that he had passed a drug test in order to obtain his current employment. He

testified his family supported him, and he acknowledged that several members of his

family had written letters to the court on his behalf. These letters were introduced into

evidence as exhibits. Four of these letters are dated after the district attorney general

formally denied pretrial diversion, and two are not dated.


                                             4
               On cross-examination, the defendant was asked if marijuana was

discovered in his “groin area,” and the defendant replied it was under the waistband of

his boxer underwear. He also testified that the other three individuals with him that

evening were juveniles and none of them were searched. When the assistant district

attorney general concluded his questioning, the trial court judge asked the defendant

what kind of paraphernalia was involved in the offense. The defendant replied, “It was

like rolling papers.” The judge asked, “That’s the paraphernalia?” and the defendant

replied affirmatively. The defendant did not mention the crack pipe that was found during

the strip search.



               Both of the defendant’s parents also testified. According to their testimony,

the defendant had become more obedient, respectful, and responsible since his arrest.

His mother testified that being arrested scared the defendant and that when he was

released from jail, he immediately told them how sorry he was and “that he would never,

ever do this again, and he promised not to disappoint us anymore, and he has not done

that.”



               The State did not present any witnesses. Instead, the State entered into

evidence a copy of the district attorney general’s letter denying diversion, a copy of the

incident report, and the pretrial diversion investigation report. The trial judge asked the

assistant district attorney general how many cigarettes one ounce of marijuana would

make. The assistant district attorney general replied he was not certain, but at least three

or four, that is, enough for everyone in the defendant’s car that evening. The trial judge

also asked the assistant district attorney general the following:

                THE COURT: Number two [in the district attorney general’s letter]
         says, “Defendant expressed no remorse.” He expressed remorse this
         morning; did he not?

                MR. BROWN: Yes, Your Honor, but as of March 17th when he
         applied and when the General wrote this letter he had not.


                                             5
              THE COURT: Not then but now. Now the Defendant’s poor work
       history, he says he has a job. Is that true or do you know?

             MR. BROWN: Your Honor, the presentence [sic] report reflects he
       does have a job, right now he has a job.

              THE COURT: All right, sir. The Court is going to grant him pretrial
       diversion.

The trial court later entered an order finding that the defendant had no prior criminal

record and that “from all of the facts and circumstances it appears that the petitioner

qualifies for diversion.”   The order further states “that considering the facts and

circumstances of this case, and the criteria utilized by the District Attorney General in

denying diversion to the petitioner, the District Attorney General . . . abused his discretion

in not placing the petitioner in the diversion program.” No other findings appear in the

record.



              A defendant is statutorily qualified for pretrial diversion if he or she has not

previously been granted diversion; does not have a prior misdemeanor conviction for

which confinement was served or a prior felony conviction within a five-year period after

completing the sentence of probationary period for the conviction; and is not seeking

diversion for a Class A or B felony, a sexual offense, driving under the influence, or

vehicular assault.    T.C.A. § 40-15-105(a)(1)(B)(i)(a)-(c) (Supp. 1998).           Statutory

qualification, however, does not presumptively entitle a defendant to diversion. Rather,

the district attorney general possesses the discretion to grant pretrial diversion to a

statutorily qualified defendant. State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997). The

defendant bears the burden of demonstrating suitability for pretrial diversion, and to that

end, the defendant should file a formal written application and supporting documents.

State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806,

809-10 (Tenn. Crim. App. 1993). In considering the defendant’s application for diversion,

the district attorney general must weigh the following relevant considerations: the

defendant’s amenability to correction; the circumstances of the offense; the defendant’s


                                              6
criminal record; the defendant’s social history; the defendant’s physical and mental

condition “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.” Pinkham, 955

S.W.2d at 959-60 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)).



              If the district attorney general denies pretrial diversion, the denial must

clearly articulate in writing the factors and evidence that were considered and the weight

accorded to each of the factors. Pinkham, 955 S.W.2d at 960; Herron, 767 S.W.2d at

156. “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.”          State v. Curry, ___ S.W.2d ___ (Tenn.

1999)(citing Pinkham, 955 S.W.2d at 960). Failure “to consider and articulate all of the

relevant factors constitutes an abuse of discretion.” Curry, ___ S.W.2d at ___. The

State’s response to an application for pretrial diversion must reflect that the district

attorney general considered all of these factors. Curry, ___ S.W.2d at ___; see Herron,

767 S.W.2d at 156.



              If the district attorney general denies diversion, the defendant may seek

review by the trial court through a petition for writ of certiorari.          See T.C.A. §

40-15-105(b)(3)(Supp. 1998). In reviewing 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. “The trial court may conduct a hearing only to resolve any

factual disputes raised by the prosecutor or the defendant concerning the application, but

not to hear additional evidence that was not considered by the prosecutor.” Curry, ___

S.W.2d at ___ (citing Pinkham, 955 S.W.2d at 960).



              The district attorney general's decision denying diversion is presumptively

correct, and the trial court must affirm his or her decision absent abuse of discretion. See

                                              7
Curry, ___ S.W.2d at ___; State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App. 1996).

Before the trial court can conclude the district attorney general abused his or her

discretion, the record “must show an absence of any substantial evidence” to support the

district attorney general’s denial of diversion. Curry, ___ S.W.2d at ___. If the trial

court’s decision is appealed, the appellate court is limited to determining whether the trial

court’s decision is supported by a preponderance of the evidence. Curry, ___ S.W.2d

at ___ (citing Pinkham, 955 S.W.2d at 960).



                 Here, the trial court judge improperly exceeded the scope of certiorari

review by entertaining evidence not considered by the district attorney general. The trial

judge allowed the defendant to admit into evidence letters written by members of the

defendant’s family, even though these letters appear to have been written after the district

attorney general decided to deny diversion. The trial judge also allowed the defendant

and his parents to testify regarding the defendant’s remorse2 and the supportiveness of

his family, but again, the record indicates that this information was not made known to the

district attorney general prior to his decision. By admitting improper evidence, it appears

that the trial judge based his decision upon new and different evidence. Winsett, 882

S.W.2d at 809.



                 “Because the applicant bears the burden initially to demonstrate to the

prosecutor both eligibility for and entitlement to pretrial diversion, the applicant would

certainly want to provide the prosecutor with as complete an application as circumstances

warrant.” Winsett, 882 S.W.2d at 809-10; see Herron, 767 S.W.2d at 156. The instant

case illustrates this point vividly. The record contains no evidence that the defendant

ever formally applied for pretrial diversion in writing or provided any supporting



        2
          W e note that although the trial court stated that the defendant testified he was rem orseful, the
record does not support this. Rather, the record shows that the defendant’s m other testified the
defendant had told her he was rem orseful, which is quite a different thing from the defendant him self
testifying he was rem orseful.

                                                      8
documents showing why he should be granted pretrial diversion. Even assuming the

defendant did submit such information to the district attorney general, the record does not

indicate the trial judge considered it in reviewing the district attorney general’s decision.

Thus, disregarding the information the trial judge improperly considered, i.e., the

defendant’s and his parents’ testimony and the letters written by members of the

defendant’s family, the record contains no evidence to support the trial judge’s

determination that the district attorney general abused his discretion in denying diversion.



              To the contrary, the evidence properly admitted at the hearing---the letter

denying diversion, the pretrial diversion investigation report, and the incident report---does

not support the conclusion that the district attorney general abused his discretion in

denying diversion. Because a preponderance of the evidence in the record does not

support the trial court’s decision, we reverse the order placing the defendant on pretrial

diversion and remand this case to the trial court for further proceedings.




                                                   _______________________________
                                                   JOHN H. PEAY, Judge



CONCUR:



_________________________________
JOE G. RILEY, Judge



_________________________________
JAMES C. BEASLEY, SR., Special Judge




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