         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                        May 2000 Session

               STATE OF TENNESSEE v. RICHARD ALLAN FRYE

                     Appeal from the Criminal Court for Sullivan County
                           No. S42,445   Phyllis H. Miller, Judge



                                  No. E1999-01564-CCA-R9-RL
                                       September 29, 2000

This appeal arises from the order of the Sullivan County Criminal Court upholding the district
attorney general’s refusal to accept the application of the defendant for pretrial diversion. The
defendant asserts that the trial court erred in failing to determine that the district attorney general
abused his discretion by relying on facts not supported by the evidence and by failing to consider
all relevant factors. We conclude that substantial evidence was before the district attorney general
to support the validity of each of the four factors relied on in denying pretrial diversion and that the
district attorney general considered all relevant factors. Accordingly, the judgment of the trial court
is affirmed.

    Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Nat H. Thomas, Kingsport, Tennessee (on appeal) and Gilbert E. Torbett, Bristol, Tennessee (at trial)
for the appellant, Richard Allan Frye.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         The defendant, Richard Allen Frye, appeals by permission the order of the Sullivan County
Criminal Court upholding the district attorney general’s refusal to accept the defendant’s application
for pretrial diversion. The defendant alleges that the trial court erred in failing to determine that the
district attorney general abused his discretion by relying on factors not supported by any substantial
evidence and by failing to fully consider all relevant factors. We conclude that the trial court
properly determined that the district attorney general acted within his discretion in denying the
defendant’s application for pretrial diversion. Accordingly, the judgment of the trial court is
affirmed.
                                                         FACTS

        The record establishes that the defendant drove James Wyant on December 5, 1998, at
approximately 5:30 a.m. to a business location on Volunteer Parkway in Bristol, Tennessee. Wyant,
a twenty-three-year-old, got out of the defendant’s car, putting on a black, full-faced toboggan and
gloves and taking a claw hammer with him. Wyant proceeded to break into a business called
“Wayne’s.” An alarm sounded when the front door of the business was broken, and the defendant
drove away. Inside “Wayne’s,” Wyant broke a glass display case and stole a number of Beanie
Babies valued at less than $500. The owner of the building heard the alarm and, upon investigating,
saw Wyant standing close to a tree on the lawn of the Bristol Tennessee Electric Company, which
was next door. The owner and his son wrestled Wyant to the ground and held him until the police
arrived.

        Wyant’s first version of the events was that a man named “Greg” had picked him up in Glade
Springs, Virginia. According to Wyant, it was Greg who had the gloves, hammer, and toboggan and
told him that they were going to commit a burglary. Greg was supposed to wait for him in front of
the electric company and drive them both away after the burglary. Once the alarm sounded, Greg
left. Wyant later admitted that the person who drove him to the scene of the burglary was the
defendant. Wyant claimed that the defendant threatened to perform a sexual act on him if he did not
commit the burglary and that he was afraid the defendant would harm him. He also claimed that the
defendant had given him Valium and alcohol. Wyant stated that he left a change of clothes, keys,
and an electronic organizer in the defendant’s car. Still later, in a telephone conversation with
Detective Jim Breuer, Wyant claimed that the defendant had not been involved at all. After
Detective Breuer warned Wyant of the seriousness of committing perjury, Wyant admitted that the
defendant had asked him to lie and corroborate the defendant’s story.

        The defendant claimed that he let Wyant out of the car in front of the electric company on
Volunteer Parkway so that Wyant could urinate and that he had no idea Wyant planned a burglary
until he heard the alarm. At that point, the defendant panicked and drove off. The defendant also
disposed of all Wyant’s belongings left in his car.

        The defendant was indicted on March 17, 1999, for conspiracy to commit burglary, a Class
E felony, and tampering with evidence, a Class C felony. The defendant, through counsel, applied
for pretrial diversion, which was formally denied by letter from the Office of the District Attorney
General dated June 14, 1999. The defendant filed a writ of certiorari with the Sullivan County
Criminal Court in conformity with Tennessee Code Annotated Section 40-15-105(b)(3) (Supp.
1999), for review of the denial of his application, claiming that the district attorney general abused
his discretion in refusing to grant the diversion request, and requesting an evidentiary hearing on the
matter.1

         1
          Evidentiary hearings on the petition for certiorari must be used “only to resolve any factual disputes raised
by the prosecutor or the defendant . . ., but [trial courts are] not to hear additional evidence. . . .” State v. Curry, 988
S.W.2d 153, 15 7-58 (T enn. 19 99). Here, the petition for certiorari failed to identify any “disputed fact.” Although at
                                                                                                               (continu ed...)

                                                             -2-
         Pursuant to the petition for certiorari, a hearing was held by the trial court on October 7,
1999. The hearing consisted solely of the arguments of counsel, defense counsel being the first to
argue, and the comments and rulings of the court. No additional proof was presented. Following
the hearing, the trial court determined that the district attorney general had not abused his discretion
in denying the defendant’s application and set the matter back on the docket. The defendant applied
to the trial court for permission to appeal its order to this court, and the trial court granted permission
to appeal. This interlocutory appeal is now before us for disposition.

                                                      ANALYSIS

         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.”). The discretion vested in the prosecutor is not unbridled; “[i]t must be exercised
so as to serve the interests of justice.” Pace v. State, 566 S.W.2d 861, 864 (Tenn. 1978). Thus, upon
proper application of the defendant, the decision of the prosecutor is subject to review by the trial
court for abuse of prosecutorial discretion. See Tenn. Code Ann. § 40-15-105(b)(3). The decision
of the prosecutor is presumptively correct, and the trial court will reverse that decision only upon
a showing by the applicant that there has been a patent or gross abuse of prosecutorial discretion.
See State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995)
(citing State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)). An abuse of discretion in this
context requires that the record show “an absence of any substantial evidence to support the refusal
of the District Attorney General to enter into a memorandum of understanding.” Hammersley, 650
S.W.2d at 356; see also Curry, 988 S.W.2d at 158 ( noting that the record “must show an absence
of any substantial evidence to support the refusal of the district attorney general to enter into a
memorandum of understanding before a reviewing court can find an abuse of discretion”).

      Our supreme court has observed that “[t]he task thus imposed upon prosecutors of deciding
which defendants are worthwhile candidates for diversion is indeed a demanding one.”
Hammersley, 650 S.W.2d at 353. It is demanding because, as stated by our supreme court:

                   Almost all criminal defendants, whether first offenders or not, would
                   claim remorse and ascribe to themselves a desire to walk the straight
                   and narrow if presented an opportunity to avoid prosecution; the
                   responsibility placed upon prosecutors to pick and choose among the
                   lot based upon a particular candidate’s amenability to rehabilitation
                   or recidivism requires the exercise of unusual powers of
                   discrimination.


         1
          (...continued)
the hearing th e parties disp uted, initially , certain aspects of the defendant’s prior conviction for reckless driving, the
defendant’s petition for certiorari itself failed to justify the holding of a hearing.

                                                            -3-
Id. 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),2 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 that are relevant
to the prosecutor’s determination should focus on the defendant’s “amenability to correction.” Id.
(quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997)). With this focus in mind, the
prosecutor should consider the following:

                    [T]he 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.

Id. (relying on Hammersley, 650 S.W.2d at 355). Pretrial diversion represents the benevolence of
the State in that diversion may result in dismissal of the prosecution and expungement of the
defendant’s record.3


       2
            According to this section, a “qualified defen dant” mu st meet each of the following requ irements:

                             (a) The defendant has not previously been granted pretrial
                             diversion under the provisions of this chapter;
                             (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 after
                             completing the sentence or probationary program for such prior
                             conviction; and
                             (c) The offense for whic h the pro secution is b eing susp ended is
                             not a Class A or Class B felony, a sexual offense, driving under
                             the influence of an intoxicant as prohibited by § 55-10-401, or
                             vehicula r assault as pro hibited by § 39-13 -106.
        3
            The applicab le law states:

                    D I S M IS S A L W I T H P REJUDICE. The trial court shall dismiss with prejudice any
                    warrant or charge against the defendant upon the expiration of ninety (90) days
                    after the expiration of the p eriod of su spension specified in the memorandum of
                    understanding is filed; provided, that no termination of the memorandum of
                    understanding has been filed under the provisions of subsection (d). If the
                    prosecution is dismissed with preju dice, jeop ardy sha ll attach, and the court sh all
                    make a minute entry to that effect. Upon dismissing any warran t or charge again st
                    the defendant pu rsuant to this section, the judg e shall send or cause to be sent a
                    copy of the order of dismissal to the Tennessee Bureau of Investigation for entry
                    into its expunged criminal offender and pretrial diversion database. Such order
                    shall include th e name of the def endan t, the defendant’s date of birth and social
                    security number, the offense for which diversion was granted, the date diversion
                                                                                                              (continu ed...)

                                                             -4-
        If the decision is to refuse to enter into a memorandum of understanding for pretrial
diversion, the prosecutor’s response must be formal and in writing, given the limited nature of
certiorari review, and should include:

                   (1)    An enumeration of all the evidence considered;

                   (2)    An enumeration of the relevant factors considered and
                          how some factor or factors controlled the decision or
                          outweighed other factors;

                    (3) An identification of any disputed issues of fact.

See id.; see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The only evidence
the trial court may consider on a grant of certiorari is the evidence that was considered by the district
attorney general. See Curry, 988 S.W.2d at 157 (citing Winsett, 882 S.W.2d at 810). A hearing in
this context should be “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.” Id. A hearing “may be useful to clarify matters already in the record about which there
may be some dispute.” Winsett, 882 S.W.2d at 810. The role of the trial court is to determine
whether or not there is any substantial evidence in the record to support the prosecutor’s refusal to
enter into a memorandum of understanding for pretrial diversion because if there is any substantial
evidence, the prosecutor cannot, as a matter of law, have abused his discretion in denying diversion.

                                                       ISSUES

                                               A. Letter of Denial

         The defendant challenges all four of the reasons stated in the letter denying his application
for pretrial diversion, arguing that no evidence supported the reasons stated by the district attorney
general. The State argues to the contrary, stating that substantial evidence supports each of the
reasons on which the decision was based.

         The assistant district attorney general, on behalf of the district attorney general, stated in his
letter that a review had been made of the presentence report, the facts the State would have available
in a trial, and all letters of support. Based on this review, the district attorney general denied the
defendant’s application.

        The first reason stated in the letter of denial is the following:

        3
            (...continued)
                     was granted and the date the charge or warrant was dismissed.

Tenn. Code An n. § 40-15-105(e) (Supp . 1999).

                                                          -5-
                  1. Mr. Frye has a history of prior criminal activity. This is
                     evidenced by a conviction for Reckless Driving, reduced from
                     a charging of Driving Under the Influence, on May 18, 1994.

         The defendant argues that this offense was minor in nature and was the single offense noted
by the prosecutor in his letter. The defendant does not dispute any specific offense included in the
presentence report. The trial court noted that the question was, “[I]s there substantial evidence in
the materials considered by the District Attorney to support reason number one (1) for denial of
pretrial diversion, that you have a history of prior criminal activity.” The trial court pointed to the
fact that the reckless driving charge was in Tennessee, not in Virginia, as counsel for the defense
erroneously assumed.4 The trial court noted that the defendant was initially charged with DUI on
May 18, 1994, but pled guilty to the lesser offense of reckless driving. The defendant does not
dispute the fact that the reckless driving plea was reduced from a DUI arrest. The trial court also
noted that the defendant’s record included a speeding violation in 1987 and a failure to pay a fine
in 1991. While the trial court noted that these were not major offenses, it did note the seriousness
of the DUI arrest. Although the prosecutor discussed the defendant’s drug use as a separate reason,
the trial court emphasized that the defendant’s use of cocaine in 1983 and again in 1993 violated the
law. The trial court also noted the defendant’s admitted use of marijuana on an occasional basis
from 1980 until 1992 or 1993. The trial court asked the defendant if he disputed the illegality of the
use of these drugs, and the defendant responded in the negative.

         Although the prosecutor’s citing of a single offense, reckless driving, in his letter hardly
constitutes a “history of prior criminal activity,” we cannot say that the trial court erred in concluding
from the materials relied upon by the prosecutor that there was substantial evidence to support the
first factor.

         The second reason was described by the prosecutor in the following way:

                  2. Mr. Frye has a history of the illegal use of drugs. This is
                     based on the fact that Mr. Frye, in his report, admits to the
                     illegal use of cocaine during 1983, as well as during 1993. In
                     addition, Mr. Frye also admits to the illegal use of marijuana
                     on occasion from 1980 until 1992 or 1993.

        The defendant does not dispute any aspect of this factor, arguing only that the fact that he
came forward with this information when he could have just lied should weigh in his favor. The
State found that such an argument for pretrial diversion—the fact that the defendant could have
lied—was, at best, anomalous. While the State acknowledged that the defendant admitted the illegal
drug use, the State further argued that the illegal drug was more a contraindication for diversion than



         4
          The defendant initially argued that the Virginia statute for reckless driving described an offense less serious
than the Tennessee statute.

                                                          -6-
a positive reflection on the defendant’s honesty. The trial court determined that substantial evidence
before the prosecutor indicated that the defendant has a history of illegal use of drugs. We agree.

         The third reason cited by the prosecutor is the following:

                     3. Mr. Frye has demonstrated that he is unable to maintain good
                        behavior while under supervision or on release into the
                        community. This is evidenced by the fact that on December
                        1, 1998, Mr. Frye’s law license was suspended for 6 months
                        for “mishandling of client trust funds” and he was placed on
                        supervision by the State Bar of Virginia. The offense in this
                        case occurred on December 8 [sic], 1998, only 7 days after his
                        suspension order was entered. In addition, Mr. Frye was cited
                        on December 19, 1991, and convicted on May 8, 1992, for
                        failure to pay a fine.5

        The defendant, while not disputing the facts concerning his suspension from the practice of
     6
law, argues that the State should have placed more emphasis on the fact that he successfully
completed the six months of suspension and had his license reinstated on June 1, 1999, and on the
fact that the events which formed the basis of his suspension occurred more than four years ago, in
1993 and 1994. The State counters that neither the successful completion of the period of
suspension nor the dates of the disciplinary violations themselves is a key issue; the fact that the
defendant’s license was suspended for serious ethical breaches in the first place is key. The
defendant committed the offenses of conspiracy to commit burglary and tampering with evidence
four days after the suspension of his license on December 1, 1998.7 The trial court determined that
there was substantial evidence to support reason three.

        We note that the agreement between the Virginia State Bar and the defendant set out specific
terms and conditions, the violation of any one of which would result in revocation of the defendant’s
license to practice law. The terms do not specifically prohibit criminal conduct. Nevertheless, the
State interprets the last sentence of the agreed disposition to mean that the defendant’s license to
practice law would be revoked for receiving “any other sanction imposed for misconduct during the




         5
             The de fendan t avers that this c itation and convictio n involv ed a park ing ticket.
         6
           Evidence before the Virginia State Bar Disciplinary Board show ed that the d efendan t on three se parate
occasions misapp ropriated clients’ fund s from h is trust accou nt, failed to m aintain ade quate trust account records, failed
to follow the required trust account procedures, and failed to prosecute matters on which he was engaged with dispatch.
The de fendan t was place d unde r strict mon itoring by the Virgin ia State Bar in May 1 995.
         7
           The record shows that the defendant’s license to practice law in Virginia was suspended for a period of five
years, beginning o n Decem ber 1, 1998 , and that four yea rs and six months of that suspension were suspended,
condition ed on th e defend ant’s strict com pliance w ith terms ag reed to by the defen dant and the Virgin ia State Bar.

                                                                -7-
probationary period.”8 While the wording is ambiguous, we agree that the defendant’s involvement
in two felonies indicated a clear disregard of the spirit of his probationary period granted by the
Virginia State Bar. We conclude that the trial court did not err in determining that substantial
evidence existed in the materials considered by the prosecutor to support reason three.

        Reason four is set out by the prosecutor as follows:

                 4. Mr. Frye as an attorney has an obligation under the Canon of
                    Ethics and his oath as an attorney to maintain the integrity of
                    the legal profession and to refrain from engaging in conduct
                    which is prejudicial to the administration of justice. As a
                    result, Mr. Frye has a professional obligation that is higher
                    than other citizens. In his statement to the police, Mr. Frye
                    admits to disposing of items belonging to his co-defendant,
                    James D. Wyant, knowing that he had committed the crime of
                    Burglary. These were items that could have been used by the
                    police to tie Mr. Wyant to the scene of the crime. By
                    disposing of these items[,] Mr. Frye kept the police from
                    discovering and using them in the prosecution of Mr. Wyant.

        The defendant argues that the State is excluding all members of the legal profession as proper
candidates for pretrial diversion. The State counters that any such reading is too broad. Rather, the
prosecutor is simply pointing to the particular circumstances of the criminal offenses as indicating
that the defendant, in spite of his heightened duty to the legal system, deliberately disposed of
evidence belonging to Wyant, with full knowledge that Wyant had committed a burglary. The trial
court noted that “as an attorney, not a brand new attorney, but an experienced attorney, and a thirty-
nine (39) year old man, Mr. Frye made a decision here, apparently, to not only thwart the connection
or break the connection with him to the burglary, but to also prevent the police from finding the
items.” The trial court further noted that even if the facts were as the defendant claimed, that is, he
had no idea that Wyant planned to commit a burglary but let him out of the car to urinate, the
defendant still failed to report the burglary. The trial court also cited case law for the proposition
that the prosecutor appropriately considered the special position of an attorney in denying pretrial
diversion. See State v. Pinkham, 955 S.W.2d 956, 958-59 (Tenn. 1997) (affirming denial of pretrial
diversion where attorney resigned from California Bar while disbarment proceedings were pending
and subsequently practiced law in Tennessee without a license).

        We conclude that substantial evidence supported reason four.

                               B. Consideration of All Relevant Factors



        8
          The wordin g is, “The revocation of Respondent’s license to practice law shall be in addition to any other
sanction im posed fo r miscon duct du ring the p robation ary perio d.”

                                                        -8-
        The defendant asserts that the prosecutor abused his discretion in denying his application for
pretrial diversion by failing to consider all relevant factors, specifically the defendant’s good
reputation and amenability to rehabilitation. The defendant also argues that the prosecutor’s letter
failed to properly explain why the factors relied upon outweighed all other positive factors. The
State responds, noting that the prosecutor did acknowledge defendant’s favorable history, but
concluded that the considerations against diversion outweighed any favorable considerations and that
the interests of society and the defendant would best be served by denying the defendant’s request
for pretrial diversion.

        The denial letter specifically states that the prosecutor relied upon the diversion request, the
facts of the matter, the presentence report, and letters provided on behalf of the defendant. After
setting out the reasons that the request was being denied, the letter concluded:

                       The above considerations must be weighed against other factors
                   in deciding eligibility for pre-trial diversion. I am aware that Mr.
                   Frye is a law school graduate and has practiced law since 1985. I am
                   also aware that Mr. Frye was cooperative with police and gave a
                   voluntary statement when contacted by the police. I am also aware
                   that Mr. Frye also has support among his acquaintances and
                   professional colleagues.

                         However, as I have previously stated, I believe that the
                   considerations against diversion outweigh any favorable
                   considerations and that the interests of society and this individual are
                   better served by denying his request for pre-trial diversion.

       Criteria for the letter of denial are judicially imposed. Our supreme court has made it
imminently clear that this letter must be more than a mere “abstract statement.” State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989). “[O]nly by analyzing all of the relevant factors, including those
favorable to the defendant, can appropriate candidates for this legislative largess be identified in a
manner consistent with the purpose of the pretrial diversion act.” State v. Curry, 988 S.W.2d 153,
158 (Tenn. 1999). If the district attorney general bases the decision on factors felt to outweigh others
submitted for consideration, there must be an indication why those factors outweigh others. See
Herron, 767 S.W.2d at 156. The prosecutor did acknowledge the defendant’s education and practice
of law since 1985. He also noted the defendant’s cooperation with the police and the letters of
support submitted by friends and colleagues.9 The prosecutor finally concluded that “the
considerations against diversion outweigh any favorable considerations and that the interests of


         9
          The trial court was puzzled by the letter of support from Dennis L. Go dfrey, Comm onwealth of Virginia’s
Attorney for Washington County, a position he had held for the past fifteen years. In the letter, Mr. Godfrey stated that
he had known the defendant since he began practicing in his jurisdiction. Mr. Godfrey indicated that “[a] review of the
local records in this county do [sic] not rev eal any cr iminal co nvictions for Mr. F rye.” W hile this may b e technica lly
accurate, the trial court noted that the record show ed that the defend ant was arrested on July 1, 1998, fo r one offense
and on June 1, 1997, for three offenses. All cases were nolle prosequied, apparen tly by M r. Godfr ey’s office .

                                                            -9-
society and this individual are better served by denying his request for pre-trial diversion.” Although
the denial letter could have been more complete and explanatory, we conclude that it minimally
shows that the prosecutor considered all relevant factors and the reasons each was weighed as it was.
Accordingly, we concur with the conclusion of the trial court that the district attorney general did
not abuse his discretion in denying diversion to the defendant.

                                          CONCLUSION

        We conclude that there is substantial evidence to support the district attorney general’s denial
of pretrial diversion, and therefore, the district attorney general did not abuse his discretion in
refusing to enter into a memorandum of understanding for pretrial diversion with the defendant.
Accordingly, the judgment of the trial court is affirmed.




                                               ___________________________________________
                                               ALAN E. GLENN, JUDGE




                                                 -10-
