            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                FILED
                             SEPTEMBER 1996 SESSION
                                                             November 8, 1996

                                                        Cecil W. Crowson
STATE OF TENNESSEE,              *                     Appellate Court Clerk
                                      C.C.A. # 01C01-9510-CC-00336

             Appellee,           *    WILLIAMSON COUNTY

VS.                              *    Hon. Donald P. Harris, Judge

MICHAEL GENTRY,                  *    (Judicial Diversion)

             Appellant.          *



For Appellant:                               For Appellee:

Ernest W. Williams and                       Charles W. Burson
J. Russell Heldman                           Attorney General & Reporter
Attorneys at Law
320 Main Street, Suite 101                   Elizabeth T. Ryan
Franklin, TN 37064                           Assistant Attorney General
                                             450 James Robertson Parkway
                                             Nashville, TN 37243-0493

                                             Joseph D. Baugh
                                             District Attorney General
                                             P.O. Box 937
                                             Franklin, TN 37065-0937

                                             Ronald L. Davis
                                             Assistant District Attorney General
                                             P.O. Box 937
                                             Franklin, TN 37065-0937




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Michael Gentry, entered a plea of guilt to one count of

official misconduct. Tenn. Code Ann. § 39-16-402(a)(5). Pursuant to a plea

agreement, the trial court imposed a Range I sentence of two years and granted

probation but denied the defendant's request for judicial diversion. Tenn. Code Ann.

§ 40-35-313; State v. Dishman, 915 S.W.2d 458 (Tenn. Crim. App. 1995). In this

appeal, the defendant claims that the trial court abused its discretion by refusing to

grant judicial diversion; he also insists that the district attorney general was guilty of

prosecutorial vindictiveness.



              We affirm the judgment of the trial court.



              On July 11, 1994, the defendant and Katrina Greer, both of the

Franklin Police Department, were indicted on two counts of official misconduct, two

counts of soliciting unlawful compensation, and one count of conspiracy. At the

time, the defendant was a sergeant of the Williamson County DUI Task Force, a

body comprised of two officers from the Franklin Police Department and one each

from the Brentwood Police, the Fairview Police, and the Williamson County Sheriff's

Department. The defendant supervised all task force activities. During Christmas of

1993, the defendant authorized for himself and the other officers in the task force

holiday pay even though no work would actually take place. A subsequent

investigation established that the defendant and Ms. Greer were the only two task

force members who had made claims for and received the unwarranted holiday pay.

The defendant was untruthful when questioned by his lieutenant during the initial

stages of the investigation.



              Initially, the state had offered to allow the defendant to plead guilty to


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one count of official misconduct, be granted probation, and then, upon successfully

completing a two-year probationary period, have his record expunged under the

provisions of judicial diversion. That offer, however, was made contingent upon the

codefendant, Ms. Greer, accepting the same terms. Ms. Greer declined.



              Several months later, a trial ensued. During the defendant's

testimony, the state again offered a plea agreement. As to Ms. Greer, however, the

period of probation was increased by one year from the original proposal and, as to

the defendant, the terms were the same except that the judicial diversion offer was

withdrawn. Each accepted the terms of the new plea agreement. At the sentencing

hearing, the state opposed the defendant's request for judicial diversion.



              The trial court denied the application on the basis that the defendant

had been untruthful during the course of the investigation and had presented

witnesses "for the purpose of creating an impression with the jury that he and Ms.

Greer did work." The trial court ultimately ruled that because the defendant held a

responsible, public position, had violated the trust incident to the office, and had

been less than candid during the various stages of the proceedings, the request for

judicial diversion should be denied.



              Judicial diversion is authorized by statute. It is reserved for "any

person who has not previously been convicted of a felony or a Class A

misdemeanor." Tenn. Code Ann. § 40-35-313(a)(1). It is available only to those

who either plead guilty or are found guilty of "a misdemeanor which is punishable by

imprisonment or a Class C, D, or E felony." Id. The statute authorizes the trial court

to place the defendant "on probation upon such reasonable conditions as it may

require and for a period of time not less than the maximum sentence for the


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misdemeanor ... or ... the felony with which he is charged." Id. In the event the

defendant satisfactorily completes his probationary term, he is entitled to a

discharge and dismissal. Tenn. Code Ann. § 40-35-313(a)(2). The effect of the

dismissal is "to restore [the defendant] to the status he occupied before such arrest

or indictment or information." Tenn. Code Ann. § 40-35-313(b). State v. Evitts, 915

S.W.2d 468 (Tenn. Crim. App. 1995).



              The grant of judicial diversion is within the discretion of the trial court.

Only an abuse of that discretion warrants a reversal. State v. Bonestel, 871 S.W.2d

163 (Tenn. Crim. App. 1993). In this case, the decision of the trial court clearly had

a rational basis. The defendant, a veteran police officer in charge of the task force,

qualified as a public employee entrusted with an important role of responsibility.

The plan to acquire unearned pay and the ensuing coverup lasted for a period of

weeks. The defendant and at least one other person participated in the plan. His

lack of candor during the investigation militates against the grant of a more lenient

sentence.



              That is not to say, of course, that the defendant did not present a

persuasive claim. At the time of trial, the 33-year-old defendant had an impressive

record. Father of three children, he had graduated from high school and had

attended Austin Peay University. He spent four years in the United States Marine

Corps and was in the Presidential Guard Service. He received several awards while

in the Marines and currently serves in the Tennessee Army National Guard. He has

training in accident investigation, accident reconstruction, and several other fields of

expertise. While the defendant may have been a worthy candidate for the judicial

diversion program, this court must defer to the judgment of the trial court which,

after having observed the demeanor of the defendant and other witnesses, found


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reasonable grounds for denial.



              The claim of prosecutorial vindictiveness also has no merit. This

defense is most commonly addressed when the defendant has been reindicted on a

more serious charge in retaliation for the exercise of a constitutional right. See, e.g.,

Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098 (1974); United States v. Wilson,

639 F.2d 500 (9th Cir. 1981). In United States v. Meyer, 810 F.2d 1242 (D.C. Cir.

1987), cert. denied, 485 U.S. 940 (1988), the term was described as follows:

              "Prosecutorial vindictiveness" is a term of art with a
              precise and limited meaning. The term refers to a
              situation in which the government acts against a
              defendant in response to the defendant's prior exercise
              of constitutional or statutory rights....

              The Supreme Court has established two ways in which a
              defendant may demonstrate prosecutorial vindictiveness.
              First, the defendant may show "actual vindictiveness"--
              that is, he may prove through objective evidence that a
              prosecutor acted in order to punish him for standing on
              his legal rights. This showing is, of course, exceedingly
              difficult to make. Second, a defendant may in certain
              circumstances rely on a presumption of vindictiveness:
              when the facts indicated "a realistic likelihood of
              'vindictiveness[,]'" a presumption will arise obliging the
              government to come forward with objective evidence
              justifying the prosecutorial action. If the government
              produces such evidence, the defendant's only hope is to
              prove that the justification is pretextual and that actual
              vindictiveness has occurred. But if the government fails
              to present such evidence, the presumption stands and
              the court must find that the prosecutor acted vindictively.

Id. at 1245 (emphasis added)(citations omitted).



              In this instance, of course, there was no reindictment. An offer of

settlement which had been made by the state and rejected by the defense several

months before was simply no longer on the table. The record does not establish

that the state, by refusing to agree to judicial diversion at the later date, attempted to

further punish the defendant. In fact, other information, perhaps not available when


                                            5
the first offer was made, had likely come into the hands of the state by the time the

new offer was proposed. Moreover, in State v. Turner, 919 S.W.2d 346, 360

(Tenn. Crim. App. 1995), this court held that the issue of prosecutorial vindictiveness

had been waived when the defendant has knowingly and voluntarily entered the

plea of guilt. That is, of course, the very case here. By accepting the revised offer,

the defendant gave up his right to complain.



              Accordingly, the judgment is affirmed.



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:



______________________________
Paul G. Summers, Judge



_______________________________
L.T. Lafferty, Special Judge




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