             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE              FILED
                            NOVEMBER 1995 SESSION
                                                            February 1, 1996

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )
                    APPELLEE,       )
                                    )    No. 01-C-01-9505-CC-00139
                                    )
                                    )    Hickman County
v.                                  )
                                    )    Cornelia A. Clark, Judge
                                    )
                                    )    (Pretrial Diversion)
NATHAN DANIEL BAIOCCO,              )
                                    )
                   APPELLANT.       )



FOR THE APPELLANT:                       FOR THE APPELLEE:

Michael J. Flanagan                      Charles W. Burson
Attorney at Law                          Attorney General & Reporter
95 White Bridge Rd., Suite 208           450 James Robertson Parkway
Nashville, TN 37205                      Nashville, TN 37243-0485
(Argued)
                                         William D. Bridgers
Dale M. Quillen                          Assistant Attorney General
Attorney at Law                          450 James Robertson Parkway
95 White Bridge Rd., Suite 208           Nashville, TN 37243-0485
Nashville, TN 37205
(On Brief)                               Joseph D. Baugh
                                         District Attorney General
                                         P.O. 937
                                         Franklin, TN 37065

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




OPINION FILED:___________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                          OPINION



       This Court granted the appellant's Rule 9 interlocutory appeal to determine whether

the trial court abused its discretion in denying the appellant's petition for the writ of

certiorari to review the district attorney general's denial of pretrial diversion. The appellant

contends that the trial court abused its discretion. The state contends that the trial court

properly affirmed the district attorney general's decision to deny pretrial diversion. Since

this Court finds that the trial court did not abuse its discretion, the judgment of the trial court

is affirmed.

       On November 7, 1994, the Hickman County Grand Jury returned a two count

presentment against the appellant, Nathan Daniel Baiocco, and a co-defendant, Jason

James Matthews. The first count charged Baiocco and Matthews with the possession of

a controlled substance, marijuana, with the intent to manufacture, sell, or deliver. The

second count charged Baiocco and Matthews with possession of drug paraphernalia. The

circumstances which form the basis of the presentment are relatively brief and

straightforward.

       On the 22nd day of July, 1994, Baiocco and Matthews were travelling along

Highway 100 in Hickman County. Baiocco was driving his automobile. Eventually, they

came to a police roadblock. The officers asked Baiocco and Matthews if there were any

drugs in their vehicle. They both answered in the negative. When the officers searched

the vehicle, a glass tube, which is used to smoke marijuana, was found in the glove

compartment, and three bags of marijuana were found in the trunk of the vehicle. The

marijuana apparently had a gross weight of eighty-seven grams.

       Baiocco is twenty years of age and single. He lives with his parents in Wayne

County. He graduated from Wayne County High School with a grade point average of

88.1. He is a machinist apprentice with a tool and gauge company in Waynesboro.

       The appellant admitted in his application that he was convicted of malicious mischief

when he was a senior in high school. In the application, he was asked: "Have you ever

committed an offense (other than minor traffic offense) for which you were not charged.

If so, state circumstances." The appellant answered "no" to the question. Later, the



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appellant was asked: "Have you ever been involved in the use, purchase, possession or

sale of marihuana, a drug, and/or a chemical, except "over the counter" medications, or

as prescribed by a licensed physician?" The appellant answered in the following manner:

"Yes . . . I have smoked [marijuana] a few times. I have never done any other drugs or

chemicals. I have never sold anything. I don't remember the dates on which I smoked

marijuana: they were scattered and infrequent."

       The district attorney general gave nine reasons why he denied Baiocco's application

for pretrial diversion. These grounds may be summarized in the following manner:

       a) The offense was committed for economic gain;

       b) There is no ground or reason that tends to excuse or justify the offense;

       c) Baiocco played a major role in the commission of the offense;

       d) Baiocco was "obviously involved in selling/dealing drugs" based upon the

quantity of marijuana and its packaging; and this was not "a spontaneous or impulsive

offense;"

       e) Baiocco failed to "offer any explanation of the origin of the drugs, ownership, his

purpose for having them, etc." and did not "dispel the appearance that he is a drug dealer"

in the application;

       f) Drug dealers "on the whole [are] not usually amenable to correction by diversion,

and rarely benefit from it;"

       g) Baiocco failed "to be cooperative with authorities or give any indication that he

has any remorse, that he recognizes the wrongfulness of his actions, or that he has any

intent to cleanse himself of his illegal drug associations;"

       h) Baiocco failed to cooperate after his arrest by providing information as to the

origin of the marijuana; and

       i) Deterrence because illicit drugs are a particular problem in Hickman County.

       The appellant argues in this Court that the district attorney general should have

considered other factors. However, the record does not reflect that these factors were

brought to the attention of the district attorney general or the trial court. Moreover, the trial

court is bound by the record formulated during the application/decision-making process.

Certainly, this Court cannot consider factors that were not brought to the attention of the



                                               2
district attorney general or the trial court.

       The trial court reiterated the grounds raised by the district attorney general. The

court then concluded that "having found that the district attorney has stated reasons that

do appear to be accurate, I cannot find that there's been an abuse of discretion in this

case. . . . So the petition for writ of cert[.] on the denial of pretrial diversion is denied."

       When the accused appeals from an interlocutory order affirming the decision of the

district attorney general not to divert the accused, the findings of fact made by the trial

court are binding upon this Court; and this Court cannot reverse the judgment of the trial

court absent a showing that the evidence contained in the record preponderates against

the trial court's judgment denying the petition for the writ of certiorari. State v. Perry, 882

S.W.2d 357, 359 (Tenn. Crim. App.), per. app. denied (Tenn. 1994).

       In this case, neither party presented evidence in the trial court. The matter was

heard upon the record considered by the trial court, namely, the application filed by the

appellant and the response filed by the district attorney general. See State v. Winsett, 882

S.W.2d 806 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).

       It has long been established that the decision of the district attorney general granting

or denying diversion is "presumptively correct;" and the district attorney general's decision

should not be set aside by this Court unless the face of the record establishes a "patent

or gross abuse of prosecutorial discretion." Pace v. State, 566 S.W.2d 861, 870 (Tenn.

1978) (cited with approval in State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983) and

Perry, 882 S.W.2d at 360). In short, this Court cannot set aside the judgment of the trial

court unless the record is void of substantial evidence to support it. Hammersley, 650

S.W.2d at 356; Perry, 882 S.W.2d at 360.

       The reasons for denying diversion are stated in detail in the district attorney

general's letter to defense counsel. The reasons are adequate to support the decision of

the trial court. It should be noted that counsel did not dispute any of these grounds during

the decision-making process.

                                     _____________________________________________
                                           JOE B. JONES, PRESIDING JUDGE



CONCUR:

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_____________________________________
       JOHN H. PEAY, JUDGE



_____________________________________
  JOE H. WALKER, III, SPECIAL JUDGE




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