         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 20, 2002

            STATE OF TENNESSEE v. PHETSAMAY INTHAVONG

              Interlocutory Appeal from the Criminal Court for Wilson County
                             No. 00-1536    J. O. Bond, Judge



                     No. M2001-03005-CCA-R9-CD - Filed March 19, 2003


In this interlocutory appeal, the defendant challenges the trial court’s upholding of the district
attorney general’s denial of her application for pretrial diversion. She argues that the district attorney
general erred in not considering all required factors in the diversion denial and the trial court erred
in taking testimony, upon which it relied in upholding the denial of diversion. Based upon our
review, we reverse the order of the trial court denying pretrial diversion and remand for a
reconsideration by the district attorney general of the defendant’s diversion application.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Reversed and
                                      Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G.
RILEY, JJ., joined.

James G. King, Nashville, Tennessee, for the appellant, Phetsamay Inthavong.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Tom
P. Thompson, Jr., District Attorney General; and Robert N. Hibbett and Jerry D. Hunt, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                               OPINION

                                                FACTS

        The nineteen-year-old defendant, Phetsamay Inthavong, was indicted on September 12, 2000,
for arson, a Class C felony, for the August 19, 2000, burning of the home of her ex-boyfriend’s
mother and stepfather, Marilyn and Paul Kees. In her application for pretrial diversion, the
defendant did not include a recitation of the facts of the alleged offense. The facts we glean from
the record reveal that the defendant, knowing that the Kees were not at home, entered their house,
set fire to a piece of paper, and threw it onto a bed, resulting in a total loss of the house and its
contents. Apparently, the defendant and Mrs. Kees’s son had recently ended their relationship, and
the defendant set fire to the Kees’s home as an act of revenge.

       The defendant submitted an application for pretrial diversion which bears the date of
February 16, 2001. The application was denied by the district attorney general on March 30, 2001.
The defendant then filed a petition for writ of certiorari on May 14, 2001, in conformity with
Tennessee Code Annotated section 40-15-105(b)(3), for review of the denial of her application. A
hearing was held on the petition on July 12, 2001, at which two of the victims, Mr. and Mrs. Kees,
were permitted to testify.1

         Mr. Kees testified that not only did the defendant set fire to their house, she also stole a
laptop computer which belonged to his stepson’s cousin who was a guest in their home at the time
of the fire. He said that the defendant had broken into their house about a month before the fire but
had returned everything she had taken. According to him, the fire was “actually the third time [the
defendant] ha[d] vented her anger out toward [them] because of boyfriend girlfriend stuff.” He said
his house had been appraised for $101,000, and he had insurance coverage on the house for $96,000
and on the contents for $56,000. After the fire, he sold the lot on which his house was located
because he could not afford to rebuild.

        Mrs. Kees testified that the defendant had been dating her son for approximately two years
and had been “like a part of the family.” Regarding the fire, Mrs. Kees said that, from the
defendant’s confession,2 it was obvious that the defendant “intended to do something” and that the
defendant said she “waited until the fire got going real good” before leaving the house. Describing
the defendant as “malicious and vindictive,” Mrs. Kees said that although the defendant knew the
family had a kitten in the house, she did not let the kitten outside before setting the house ablaze,
causing the kitten to perish in the fire.

       Following the hearing, the trial court determined that the district attorney general had not
abused his discretion in denying the defendant’s application:

                             In what I’ve heard here this morning we have at least four
                     people that had crimes committed against them. The visitor that was
                     there lost what they had. There was a burglary involved, although it’s
                     not charged. It could be charged, still could be charged if they went
                     to the grand jury and charged her with the burglary. That is a


         1
           Evidentiary hearings on the petition for certiorari must be used “only to resolve any factual disputes raised by
the prosecutor or the defendant concerning the application, but [the trial courts are] not to hear additional evidence that
was not considered by the prosecutor.” State v. Curry, 988 S.W.2d 153, 157-58 (Tenn. 1999). Here, the petition for
certiorari did no t identify any “d isputed fact.” Although at the hea ring de fense counsel stated that the defendant
adamantly denied some of the facts which had b een testified to by the victims, specifically, that she had broken into their
home on a previous occasion, the defendant’s petition for certiorari itself failed to justify the holding of a hearing.

         2
             The defendant’s alleged confession is no t include d in the record on app eal.

                                                             -2-
                 burglary, go in somebody’s home and take something is a burglary.
                 And then you have at least four people involved that were there or
                 had things in that house burned up, completely destroyed the house
                 evidently. When I first read it I thought it was a partial fire, but it
                 wasn’t. It’s a lot of damage, a lot of damage. And of course the
                 [defendant], I guess she’s going to need a psychologist, she needs
                 something. But all the times she’s done it, she’s taken things before,
                 burglarized the house before according to these people. And the
                 D.A., of course, they have to look at the whole background of this
                 thing before you just up and say pretrial diversion. I try to help young
                 people . . . [b]ut there are certain types of things that just can’t really
                 be helped. The D.A. has a responsibility to the community and for
                 me to decide that they have failed to exercise that responsibility
                 correctly and override what they’ve done, the record has to be pretty
                 clear on that.

                  ....

                           These are the type things that just can’t happen[] in a civilized
                  society. We have to follow the rules. And the fact that she’s not a
                  US citizen3 really doesn’t, as far as I’m concerned, doesn’t make any
                  difference. She’s still under the same rights that all of us here enjoys
                  in this country. I don’t know what [e]ffect this would have on her if
                  she had a judgment against her. It could be far more reaching
                  probably than we even know.

                  ....

                  She’s lucky she doesn’t have a string of charges against her over a
                  period of time from what I’ve just heard here. She could have been
                  indicted for all these things. Maybe not convicted but she could have
                  been indicted. A series of crimes. And to burn a little cat up in the
                  house, I mean the animal didn’t do anything to anybody. And to
                  mistreat an animal like that, knowing it was in there and not getting
                  it out before you burned it. That bothers me too, because I like little
                  cats, I like little animals.

                         I don’t believe they have abused their discretion. . . . [The
                  victims] have lost a lot. They have lost a lot more than could ever be


        3
          At the hearing, defense counsel divulged that the defendant came to the United States from Laos with her
parents when she was four years old. Although the defendant’s parents have established U.S. citizenry, apparently the
defenda nt never has.

                                                        -3-
                replaced. When you lose everything in the fire, you may have saved
                some of the pictures, but there’s things you don’t save. There are
                memories that you lose, and these folks lost, I guess it was a good
                thing wasn’t somebody in the house because it could have been
                aggravated. It could have been had somebody been in there, but it’s
                not aggravated. It’s a class C felony. I don’t believe they have
                abused their discretion. I think someone who would do this in
                vengeance needs to have a public record made of it, so if it happens
                again you know where the tracks are. And people will be able to see
                what type person that person is.

                        So I’m going to overrule your motion. I think the D.A. has a
                right. You’re allowed to appeal it though.

         The defendant applied to and received permission of the trial court to appeal its order to this
court.

                                             ANALYSIS

                                         Denial of Diversion

        The defendant argues that the trial court erred in upholding the district attorney general’s
denial of her application in that the court considered testimony from the victims at the hearing
regarding allegations that were not considered by the district attorney general and not mentioned in
her application. The State responds that because the defendant chose to rely solely on her application
at the hearing and because the facts of the crime were in dispute, the court heard from the victims,
after which the court concluded that the prosecutor had not abused his discretion in denying
diversion.

        Initially, in our review, we note that the application for pretrial diversion provided only basic
information about the defendant. As for her education, it stated that she had graduated from high
school in 2000, attended college apparently for one month following her graduation, and was
currently attending a community college. It appears that she had summer employment while in high
school and had been working at a Sears store since her graduation from high school. She had been
involved in several student organizations while in high school, holding leadership positions in at
least two. On the portion of the application asking for the defendant’s “recitation of the facts of the
offense,” she wrote, “I would recite the facts of this case with my attorney.” She stated in the
application that she could pay restitution of $400 per month. According to the application, a
psychiatric or psychological evaluation had been conducted on the defendant, and she said she would




                                                  -4-
provide a copy, if requested, although she did not know if she had been diagnosed “with a particular
problem.”4

        In his written response denying the defendant’s application for pretrial diversion, the
prosecutor listed five reasons for the denial: (1) the offense involved more than one victim; (2) the
amount of damage to property sustained by the victims was particularly great; (3) the offense was
committed to gratify the defendant’s desire for revenge; (4) the victims are opposed to diversion; and
(5) granting diversion will not deter this particular crime.5 The denial explanation concludes by
stating: “The above-enumerated factors certainly demand that this case be brought to trial.”

        Our legislature has provided that the decision to grant pretrial diversion should rest within
the discretion of the district attorney general. See Tenn. Code Ann. § 40-15-105; see also State v.
Curry, 988 S.W.2d 153, 157 (Tenn. 1999) (“[W]hether to grant pretrial diversion to a qualified
defendant who is statutorily eligible is a determination that lies in the discretion of the district
attorney general.”). While our legislature has defined a “qualified defendant” as one who meets
statutory requirements set out in Tennessee Code Annotated section 40-15-105(a)(1)(B)(i) (Supp.
2001),6 the courts have provided guidance to prosecutors in determining which defendants among
those who pass the statutory requirements are then suitable for pretrial diversion. See Curry, 988
S.W.2d at 157 (“One who is statutorily eligible is not presumptively entitled to diversion.”). The
factors relevant to the prosecutor’s determination focus on the defendant’s “amenability to
correction.” Id. (quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997)).




         4
          The record on appeal contains an “Application for Certification of Eligibility for Diversion,” apparently from
the Tennesse e Bureau of Investigation, o f a certain name d individual who was apparently applying for diversion.
Ho wever, the person named is not the defendant, and this form does not ap pear to be relevant to this ap peal.

         5
          The prosecutor’s amended response, filed nearly three months after the initial denial of diversion and a m onth
and a half after the defendant had filed he r petition for writ of certiorari, acknowledged that the defendant had no
previous criminal record and had a good work, education, and social history. However, the prosecutor concluded that
those factors did not ou tweigh the seriousness of the crime, “this Defendant and this crime must be deterred,” and “the
ends of justice cannot be served by diverting this case.”

         6
             Acco rding to this section, a “qualified defendant” must meet each o f the following requirements:
                               (a) The defendant has not previously been granted pretrial diversion under
                     the provisions of this chapter or judicial diversion under the provisions of § 40-35-
                     313;
                               (b) The defendant does not have a prior misdemeanor conviction for
                     which a sentence of confinement is served or a prior felony conviction within a five-
                     year period a fter completing the sentence or pro bationary pro gram for such prior
                     conviction; and
                               (c) The offense for which the prosecution is being suspended is not a Class
                     A or Class B felony or a Class C felony as defined in this subsection, a sexual
                     offense, driving under the influence of an intoxicant as prohib ited by § 55-10-401,
                     or vehicular assault as prohibited by § 3 9-13 -106 .

                                                            -5-
       Our supreme court restated, in State v. Bell, 69 S.W.3d 171, 177 (Tenn. 2002), the State’s
responsibility when denying an application for pretrial diversion:

                      In cases where the district attorney general denies an application
               for pretrial diversion, the denial must be written and must discuss all
               of the relevant factors considered and the weight accorded to each
               factor. State v. Curry, 988 S.W.2d at 157. That a defendant bears
               the burden of establishing suitability for diversion does not relieve the
               district attorney general of the obligation of examining all of the
               relevant factors and of setting out all of the required written findings.
               Id.; see also State v. Pinkham, 955 S.W.2d at 959. In addition, the
               denial statement must identify factual disputes between the evidence
               relied upon and the application filed by the defendant. State v. Curry,
               988 S.W.2d at 157.

        Here, the response of the district attorney general set out five reasons for denying pretrial
diversion, which consisted of the facts of the crime, the defendant’s motivation for the arson, the
opposition of the victims, and the need for deterrence. Although the defendant’s application was not
supplemented with recommendations or similar material, the diversion denial did not acknowledge
that the information set out in the application had been considered in determining that the defendant
should not be granted diversion. While the district attorney general filed an amended response to
the diversion denial after the defendant had sought certiorari, the amendment stating that additional
factors had been considered, this second explanation appears to be an afterthought, intended for use
at the certiorari hearing.

        The limited function of a hearing on a petition for writ of certiorari was also explained in
Bell, 69 S.W.3d at 177 (footnote omitted):

                      If an application for pretrial diversion is denied, the defendant
               may appeal to the trial court for a writ of certiorari. Tenn. Code Ann.
               § 40-15-105(b)(3) (1997 & Supp. 2001). On review, the trial court
               must consider only the evidence considered by the district attorney
               general and must determine whether the district attorney general has
               abused his or her discretion. See State v. Curry, 988 S.W.2d at 158
               (citation omitted). To determine whether there has been an abuse of
               discretion, the trial court must determine whether the district attorney
               general has considered all of the relevant factors and whether
               substantial evidence existed to support the denial of diversion. Id.;
               see also State v. Hammersley, 650 S.W.2d at 353. The trial court
               may conduct a hearing, but only to resolve any factual disputes raised
               by the district attorney general or the defendant. State v. Curry, 988
               S.W.2d at 158. On appeal, the appellate court is bound by factual



                                                 -6-
                findings made by the trial court unless the evidence preponderates
                against them. Id.

        The court further explained, in Bell, the limited review of the trial court in hearing a petition
for certiorari following a denial of diversion:

                      It is critical to emphasize that the discretion to grant or deny
                pretrial diversion rests with the district attorney general, not the trial
                court. The trial court, in exercising its rather limited review pursuant
                to a petition for a writ of certiorari, may not re-weigh the evidence or
                substitute its view for that of the district attorney general. See, e.g.,
                Ben H. Cantrell, Review of Administrative Decisions by Writ of
                Certiorari in Tennessee, 4 Mem. St. L. Rev. 19, 20 (1973). Instead,
                the trial court must only determine whether the district attorney
                general has abused his or her discretion by failing to consider and
                weigh all of the relevant factors or by reaching a decision that is not
                supported by substantial evidence. State v. Curry, 988 S.W.2d at 158;
                see also State v. Hammersley, 650 S.W.2d at 355. Indeed, a court
                cannot reasonably conclude that there is substantial evidence to
                support the district attorney general's decision if in fact the district
                attorney general has not first considered all of the relevant factors and
                their relative weight.

Id. at 179.

        In denying pretrial diversion to the defendant, the district attorney general provided the
following recitation of the facts: “Evidence that the State would prove to the Court The [sic]
Defendant, on August 19, 2000, did set fire to the home of her former boyfriends [sic] parents and
caused extensive damage.” Based upon these facts, the State denied diversion because the crime
“involved more than one victim”; the property damage was “particularly great”; the offense gratified
the “defendant’s desire for revenge”; the victims opposed the defendant’s being placed on diversion;
and the crime would not be deterred if the defendant were granted diversion. As for identifying the
disputed facts, the State’s response stated that “[t]he Defendant has entered a plea of not guilty.”

         We respectfully disagree that the State satisfied its responsibility to consider and weigh all
relevant factors. No mention was made of the defendant’s diversion application, other than as a
trigger for the State’s denial. Likewise, we respectfully disagree that a defendant’s plea of not guilty
results in all facts of the offense then becoming disputed, so as to necessitate testimony of the
victims at a subsequent hearing on the petition for writ of certiorari. We conclude, further, that the
State’s amended diversion denial, filed after the defendant sought a writ of certiorari, was an attempt
to comply with the State’s responsibility to consider all factors relevant to a diversion application.
However, if, upon a defendant’s filing a petition for writ of certiorari after a denial of diversion, the
State could simply file an amended response to correct an earlier one which was inadequate, the


                                                   -7-
review process is subverted. Under these circumstances, it is not surprising that the trial court was
curious to learn the facts of the case, since the court had to review the State’s fact-based denial of
diversion, although there was no recitation of those facts upon which the State had relied.

                                          CONCLUSION

        We reverse the order of the trial court and remand this matter to the district attorney general
for reconsideration of the defendant’s application for pretrial diversion. In doing so, we are not
suggesting what that determination should be. If the defendant again is unsuccessful, she may file
a petition for writ of certiorari seeking a review of the redetermination result.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                 -8-
