                                    I N     T H E     S U P R E M E      C O U R T      O F       T E N N E S S E E FILED
                                                               A T      J A C K S O N
                                                                                                                   November 17, 1997

                                                                                                                    Cecil Crowson, Jr.
                                                                                                                    Appellate C ourt Clerk


S T A T E   O F     T E N N E S S E E                                            )            F O R       P U B L I C A T I O N
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                                                                                 )            F I L E D :       N O V E M B E R       1 7 ,   1 9 9 7
                        A p p e l l e e                                          )
                                                                                 )            S H E L B Y       C O U N T Y
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                                                                                 )            H O N .       J U L I A N   P .     G U I N N ,
C H A R L E S     A .     P I N K H A M ,     J R .                              )                        J U D G E
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                        A p p e l l a n t                                        )            N O .       0 2 - S - 0 1 - 9 6 1 1 - C R - 0 0 0 9 6




F o r   A p p e l l a n t :                                                      F o r        A p p e l l e e :

L A R R Y R I C E                                                                J O H N K N O X W A L K U P
M e m p h i s , T N                                                              A t t o r n e y G e n e r a l                a n d     R e p o r t e r

                                                                                 M I C H A E L E . M O O R E
                                                                                 S o l i c i t o r G e n e r a l

                                                                                 E L I Z A B E T H T . R Y A N
                                                                                 A s s i s t a n t A t t o r n e y                G e n e r a l
                                                                                 N a s h v i l l e , T N

                                                                                 J U D S      O   N W     . P H I L L I P S
                                                                                 L E E        V   . C     O F F E E
                                                                                 A s s i      s   t a n   t D i s t r i c t       A t t o r n e y s
                                                                                     G e      n   e r a   l
                                                                                 M e m p      h   i s ,     T N




                                                                     O P I N I O N
A F F I R M E D                                                  B I R C H , J .
                  We granted the application for permission to appeal filed

by Charles A. Pinkham, Jr., in order to determine the extent to

which the district attorney general must disclose on the record the

evidence          relied   upon   to   reject   an   application   for   pretrial

diversion.1



                  We find that the district attorney general has a duty to

include in the record the factual basis and rationale for denying

diversion.          If, in petitioning the trial court for review of the

diversion decision, the petitioner contests the facts upon which

the district attorney general relied, then the trial court should

hold an evidentiary hearing to resolve the factual dispute.                   The

trial court should not consider any evidence shown to be materially

false or obtained in violation of constitutional rights as it

determines whether the district attorney general abused his or her

discretion in rejecting the pretrial diversion application.



                  In the case under submission, Pinkham did not challenge

the evidence relied upon by the district attorney general. Rather,

he contended that a portion of it was irrelevant, remote, and

unreliable.          Our review of this evidence leads us to conclude that

the district attorney general did not abuse his discretion in



          1
              Tenn. Code Ann. § 40-15-101 et seq. (1991).

                                           2
denying pretrial diversion.              For the reasons herein stated, the

judgment of the Court of Criminal Appeals is affirmed.




                                             I



             The record establishes that Pinkham, at the time not

licensed     to   practice    law       in   any    jurisdiction,      prepared    and

supervised the execution of the will of Hilda Bratton.                           After

Bratton’s death, proceedings to contest the will were initiated.

Because the will had not been properly attested, Bratton’s estate

passed     according   to    the    law      of    intestacy,    and     the   intended

beneficiaries received approximately $90,000 less than they would

have received had the will been admitted to probate.                       During the

will contest, Pinkham was asked by the trial court if he was an

attorney licensed to practice in Tennessee. Pinkham responded that

he was so licensed; this response was untrue.



             Subsequently,         Pinkham         was     indicted    for      falsely

representing      himself    as     a    lawyer,2        impersonating    a    licensed

professional,3 and aggravated perjury.4                  As permitted by Tenn. Code

Ann. § 40-15-101 et seq. (1991), Pinkham applied to the district

attorney general for pretrial diversion.




     2
         Tenn. Code Ann. § 23-3-108 (1994), a Class E felony.
     3
         Tenn. Code Ann. § 39-16-301 (1991), a Class B misdemeanor.
     4
         Tenn. Code Ann. § 39-16-703 (1991), a Class D felony.

                                             3
            His application shows that Pinkham is the fifty-five-

year-old married father of two.       As a youth, he attained the Eagle

rank in scouting, excelled in athletics, and served as a president

of the student body of his high school.        He attended the University

of California and graduated with a degree in business.               He then

entered law school at Golden Gate University and graduated as one

of the top students of his class.            Pinkham was admitted to the

practice of law in California.



            Pinkham   states   that   in    1983   he   became   addicted   to

alcohol.    This disease, he says, caused him to neglect his law

practice.    In 1986, he surrendered his California law license and

was admitted to a ten-week inpatient rehabilitation program.            Upon

release from this program, Pinkham and his family relocated to

Memphis, where he obtained employment as a financial planner.



            Pinkham’s application is replete with letters of support

from individuals in the community.         It is clear that he has devoted

substantial time and energy to his church and the community.



            After considering Pinkham’s application, the district

attorney general rejected his application for pretrial diversion

and gave the following explanation:


                 A.   The circumstances of the case
                 indicate that the defendant engaged
                 in a systematic and continuing
                 criminal activity. . . .

                 . . . .

                 Having engaged in the unauthorized
                 practice   of  law,  Mr.   Pinkham

                                      4
compounded [the] original criminal
behavior by lying under oath when
questioned by Judge Southern--some
ten months later . . . .        In
addition to committing three (3)
separate offenses for which he is
indicted, Mr. Pinkham has a fourth
uncharged  offense   in  which  he
contracted to prepare another Will
for a Charles E. Shartle on March
23, 1993.

B.   The magnitude of the losses
suffered by the victim mandate
against Mr. Pinkham’s application
for diversion. . . .     The actual
or/and    potential   amounts    of
restitution are so enormous that
pre-trial diversion is not only
inappropriate but also impractical.

C.    I believe further that Mr.
Pinkham is not a suitable candidate
for pre-trial diversion because Mr.
Pinkham,    unfortunately,    has   a
history of dishonesty and unethical
behavior.   Mr. Pinkham voluntarily
resigned from the California Bar on
December    31,    1986,    while   a
disciplinary proceeding was pending
to disbar Mr. Pinkham. The State of
California alleged that Mr. Pinkham:
engaged in professional misconduct;
violated his oath and duties as an
attorney;     misappropriated      or
converted client funds; abandoned
his clients; and/or committed acts
involving      moral      turpitude,
dishonesty     and/or     corruption.
Having voluntarily surrendered his
California law license, Mr. Pinkham
engaged    in   the    criminal   and
egregious conduct which led to his
current indictments. . . . Lastly,
Mr. Pinkham continued to demonstrate
an inability or unwillingness to
tell the truth when he spoke with an
investigator    with   the   Attorney
General’s office on November 23,
1993. . . .

D.   There is an overwhelming need
for deterrence in this case. . . .
We must deter individuals from
unlawfully    engaging   in    the
unauthorized practice of law.   If

                 5
this   defendant    were   placed  on
diversion, other citizens may be
encouraged to practice law without a
license.     Other individuals may
receive a false message that, if
detected engaging in the practice of
law   without     a    license,   the
punishment is minimal.      We cannot
send a message to this community
that a defendant will not be
punished if that defendant has the
financial wherewithal to “buy his
way out of trouble.” We shall not
send a message that the Attorney
General   condones    a   defendant’s
intentionally lying to a Judge
. . . .

In making this decision to reject
the        defendant’s       diversio n
application, I have considered that
Mr. Pinkham is a 50 year old man
with no criminal record.        I have
considered his exemplary social
history. I have considered that Mr.
Pinkham appears to be a leader in
his community, as evidenced by the
character and reference letters from
lawyers,       teachers,    professors,
ministers, doctors, et al. I have
considered all of the parameters of
Mr.      Pinkham’s    social,   family,
p e r s onal,     educational       an d
professional background.

I have weighed all those factors in
deciding whether the interests of
justice would be served best by
placing Mr. Pinkham on diversion. I
have concluded that the interests of
the public substantially outweigh
the interests of the defendant.
Since Mr. Pinkham is a highly
educated person who holds a law
degree, Mr. Pinkham knew that his
conduct was unlawful and unethical.
Unquestionably, Mr. Pinkham made a
deliberate choice to violate the
law. Having violated the criminal
laws of the State of Tennessee, Mr.
Pinkham   made   an   unconscionable
decision to engage in a continual
pattern of deception and dishonesty.
Mr. Pinkham deliberately chose to
engage in systematic and continual
pattern of criminal activity . . . .

                   6
                Sadly,   Mr.    Pinkham’s    actions
                demonstrate a continuation of the
                unethical,    unprofessional     and
                illegal conduct which caused him to
                lose his California Law license.

                After considering and weighing all
                the factors enumerated above, I must
                deny the application for diversion
                of Charles A. Pinkham, Jr. . . .



                                II



          The decision to grant or deny pretrial diversion is a

discretionary one that lies with the district attorney general.

Pace v. State, 566 S.W.2d 861, 864 (Tenn. 1978).       The district

attorney general must consider all relevant factors in making his

or her decision.   State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim.

App. 1993).   In Hammersley, we outlined these factors:


                When deciding whether to enter into
                a memorandum of understanding under
                the pretrial diversion statute a
                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.



                                 7
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).                             If the

district attorney general denies pretrial diversion, that denial

must be written and must include both an enumeration of the

evidence that was considered and a discussion of the factors

considered and weight accorded each.                 State v. Winsett, 882 S.W.2d

806, 810 (Tenn. Crim. App. 1993).                     In addition, the district

attorney general should identify any factual disputes between the

evidence relied upon and the petitioner’s application.                           Id.



               Upon   denial     of    pretrial      diversion       by    the   district

attorney general, the petitioner may petition the trial court for

a writ of certiorari and review of the district attorney general’s

decision.        In     petitioning     the       trial     court    for   review,     the

petitioner should identify any part of the district attorney

general’s factual basis he or she elects to contest.                             We would

expect such contests to be limited to matters that are materially

false     or    based    on    evidence       obtained       in     violation     of   the

petitioner’s constitutional rights. If there be a factual dispute,

the trial court should conduct an evidentiary hearing and resolve

the   dispute     before      determining         whether    the    district      attorney

general abused his or her discretion in denying pretrial diversion.

See     id.     The     action    of    the       district    attorney      general     is

presumptively correct, and it is subject to review by the trial

court only for an abuse of discretion.                    Hammersley, 650 S.W.2d at

356; Pace, 566 S.W.2d at 870.             As we stated in Hammersley, “[t]he

record must show an absence of any substantial evidence to support

the refusal of the District Attorney General to enter into a




                                              8
memorandum of understanding before a reviewing court can find an

abuse of discretion.”     Id.




                                  III



          On appeal, we review to determine whether the trial

court’s decision is supported by a preponderance of the evidence.

State v. Houston, 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995).



           Pinkham principally contends that we should require a

district attorney general to include in the record all the evidence

relied upon to deny diversion, specifically in this case, evidence

of the circumstances of Pinkham’s surrender of his California

license and the related uncharged offense(s). We discern, however,

nothing in the statute or in our prior cases to support such a

requirement.     Rather, the district attorney general is simply

required to identify the factual basis and rationale for the

decision to deny pretrial diversion.        See Winsett, 882 S.W.2d at

810; Hammersley, 650 S.W.2d at 355.       Moreover, a requirement such

as   Pinkham   suggests   would   be    unduly   burdensome   and   likely

unnecessary.   For example, the information about the surrender of

the California license could well have come from a confidential

source.   Certainly, the district attorney general may elect to

include such information in the record that is transmitted to the

trial court. Such information may assist the trial court and could

conceivably make an evidentiary hearing unnecessary.          We decline,


                                   9
however, to require this.            All that is required is that the

information be sufficiently detailed in the denial letter, so the

petitioner can ascertain the existence of a factual dispute.



            Because Pinkham did not dispute the factual basis for the

district attorney general’s decision, there was no pressing need

for the trial court to hold an evidentiary hearing.              Rather, the

trial   court    could   have   considered   the   matter   on   the    record,

presumably comprised of the indictment, the petition, and the

response of the district attorney general.           Further, we find that

the district attorney general properly considered the circumstances

surrounding the surrender of Pinkham’s California license and the

uncharged   offense(s)     in   evaluating    Pinkham’s     application     for

pretrial diversion.      This information is relevant to and probative

of the petitioner’s amenability to correction, his risk to re-

offend, and whether pretrial diversion is in the best interests of

the public.       It was certainly no more remote than Pinkham’s

recitation of his youthful accomplishments and no less reliable

than the letters of support attached to his application.



            We   have    carefully    reviewed     the   district      attorney

general’s letter denying Pinkham pretrial diversion.                   In it he

clearly identified the information upon which he relied. Moreover,

he extensively discussed the factors he considered, the weight

accorded to each, and his conclusion.               The district attorney

general’s procedure fulfilled the requirements of Hammersley and

Winsett.




                                      10
          In our view, the trial court’s decision upholding the

district attorney general’s rejection of Pinkham’s application for

pretrial diversion is supported by a preponderance of the evidence

in the record.   It follows that the judgment of the Court of

Criminal Appeals is affirmed.   Costs of this appeal are taxed to

the appellant for which execution may issue, if necessary.




                                     ______________________________
                                     ADOLPHO A. BIRCH, JR., Justice


CONCUR:

Anderson, C.J.
Drowota, Reid, Holder, JJ.




                                11
