         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 13, 2000

            STATE OF TENNESSEE v. BRIAN RUSSELL WEBB
                    Appeal from the Circuit Court for Montgomery County
                        No. 40984     John H. Gasaway, III, Judgeell



                      No. M2000-00743-CCA-R9-CD - Filed April 16, 2001


The Defendant, Brian Russell Webb, was charged with driving under the influence (DUI), reckless
driving, violation of the implied consent law, speeding, evading arrest, theft of property valued at
more than $10,000 and vandalism. He pled guilty to the DUI, and upon motion of the State, the trial
court dismissed the charges for reckless driving and violation of the implied consent law. The
Defendant filed an application for pretrial diversion for the remaining charges, which the prosecutor
subsequently denied. The Defendant then filed a petition for a writ of certiorari, seeking review of
the prosecutor’s denial of his application for diversion. After a hearing, the trial court found that the
State had abused its discretion and ordered the Defendant placed on pretrial diversion. In this appeal,
pursuant to Tenn. R. App. P. 9, the State contends the trial court erred in finding that the prosecutor
abused his discretion in denying pretrial diversion. We reverse the judgment of the trial court and
remand this matter for further proceedings consistent with this opinion.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN
E. GLENN, JJ., joined.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
John W. Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District
Attorney General, for the appellant, State of Tennessee.

Brian R. Webb, Newport, Tennessee, pro se appellee.

                                              OPINION

                                            I. Background

        On May 1, 1999, the Defendant, while intoxicated, stole a motorcycle from a restaurant
parking lot in Clarksville, Tennessee. As the Defendant was driving the motorcycle on a state
highway, an officer observed the Defendant driving 67 miles per hour in a 45 miles per hour zone.
The officer pursued the Defendant and a chase ensued, which reached a speed of more than 100
miles per hour. After about two miles, the Defendant ran out of gas and the officer arrested the
Defendant. The Montgomery County Grand Jury returned a seven-count indictment against the
Defendant charging the following offenses:

               I.      driving under the influence (DUI)
               II.     reckless driving (Class B misdemeanor)
               III.    violation of the implied consent law
               IV.     speeding (Class C misdemeanor)
               V.      evading arrest (Class E felony)
               VI.     theft of property valued between ten thousand dollars ($10,000) and sixty
                       thousand dollars ($60,000) (Class D felony); and
               VII.    vandalism (Class A misdemeanor).

       Defendant pled guilty to count I (DUI) and received a sentence of eleven (11) months and
twenty-nine (29) days, with all but ten days suspended and the balance to be served on supervised
probation. Upon the State’s motion, the trial court dismissed counts II and III, and the Defendant
requested pretrial diversion for counts IV through VII.

        In an affidavit submitted in support of his request for pretrial diversion, the Defendant stated
that he was a 26 year-old employee of Norfolk Southern Railroad, where he has been employed since
1998. Defendant stated that he had been diagnosed as being an alcoholic and bi-polar (i.e., manic
depressive). The Defendant stated that he had gone through recovery for his alcoholism and was
attending Alcoholics Anonymous meetings. Defendant further stated that he was seeing a
psychiatrist and taking prescribed medication for his mental illness. Prior to the incident leading to
the instant charges, Defendant was a Tennessee Highway Patrolman and a graduate of the Tennessee
Highway Patrol Academy. Defendant claimed that upon graduating from the academy, he was
assigned to work the Middle Tennessee area, which forced him to leave his family in East Tennessee.
Defendant stated that this move caused him depression and anxiety, which eventually led to a relapse
in his drinking. In sum, Defendant argued that, but for his mental illness and alcoholism affecting
his decision-making, he would not have engaged in the conduct leading to the instant charges.

       On September 29, 1999, the Assistant District Attorney General rejected Defendant’s
application for pretrial diversion in a letter to Defendant’s then retained attorney. The prosecutor
acknowledged the positive factors weighing in favor of diversion, such as:

        (1) defendant’s lack of criminal convictions;
        (2) his graduation from the Tennessee Highway Patrol Academy;
        (3) his former position as a deputy in Knox County and a member of the National
        Guard;
        (4) his good employment history;
        (5) his diagnosis as an alcoholic and his continued treatment and rehabilitation; and
        (6) his diagnosis as a bi-polar manic depressive and his continued treatment.


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      However, in his denial letter, the prosecutor noted several other factors that he felt weighed
more heavily against the Defendant’s potential for rehabilitation:

               “These factors are: The nature and circumstances of the pending charges.
       Specifically I am concerned that he, a trained law enforcement officer, would cause
       an extremely dangerous high speed chase to occur, in excess of 100 MPH, thereby
       putting his and others [sic] lives at risk. The chase ended only because he ran out of
       gas and not because he chose to stop. He had been drinking. He was arrested with
       tools on his person which tend to indicate that the theft of the motorcycle was
       planned and not an impulsive act. He became very combative and abusive towards
       the officers after he was arrested. He made a conscious effort to prevent an accurate
       breath test. These charges occurred while he was awaiting trial for a DUI arrest, in
       which he also attempted to run from the police at a high rate of speed and nearly ran
       over another officer. I have learned that he is currently under investigation for
       additional auto/vehicle theft charges.”

       After weighing all the factors, the prosecutor concluded that the interest of the public
substantially outweighed the Defendant’s interest in pretrial diversion, for the following reasons:

       “Given the repetitive nature of this offense, the fact that he was a trained law
       enforcement officer who knew that his conduct was very dangerous and illegal, his
       violation of public trust, the need for deterrence of high speed attempts to evade
       arrest, I have concluded that he made a deliberate decision to violate the law and
       engaged in a series of acts to thwart the effective enforcement of the law.”

         The Defendant filed a petition for writ of certiorari to the trial court to review the State’s
denial of pretrial diversion. A transcript of the hearing was not provided on appeal. However, in
its written opinion and subsequent order, the trial court found that the prosecutor abused his
discretion in denying pretrial diversion. Specifically, the trial court found that the prosecutor either
inappropriately or inaccurately considered “an ongoing criminal investigation and prior law
enforcement training” and a possible “violation of public trust” by the Defendant. The trial court
also found that it was error for the prosecutor not to fully consider “the likelihood that pretrial
diversion served the ends of justice and [the] best interests of both the public and defendant.” The
trial court concluded that the prosecutor failed to consider certain mitigating factors submitted by
the Defendant. The trial court further found that the prosecution failed to consider such factors as:
Defendant’s age; family support; extensive treatment for his alcoholism; the effect of alcohol on
Defendant’s behavior; the impact of a felony conviction on Defendant’s employment; and
Defendant‘s ability to “‘pay (his) debt to society and earnestly work for the community.’” Finally,
the trial court found that the prosecutor failed to articulate why he gave certain factors more weight
than others. As a result, the trial court ordered that the Defendant be placed in pretrial diversion for
the maximum period of two years under supervised probation, to include: 1) random drug testing,
2) continued psychiatric treatment, 3) AA meetings, 4) restitution to the victim and 5) payment of
court costs and supervision fees.


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        From the trial court's order, the State of Tennessee brings this appeal.

                                              II. Analysis

        The decision to grant or deny an application for pretrial diversion is within the discretion of
the prosecuting attorney. Tenn. Code Ann. § 40-15-105; State v. Curry, 988 S.W.2d 153, 157 (Tenn.
1999). In making this determination, the 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.

Curry, 988 S.W.2d at 157 (quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997) and
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The prosecutor’s response must be in
writing, must list the evidence considered, and must point out any factual discrepancies between the
evidence upon which the prosecutor relied and that presented in the defendant’s application. Curry,
988 S.W.2d at 157. The response must discuss the factors considered by the prosecutor and the
weight given to each factor. Id. “That a defendant, obviously, bears the burden of demonstrating
suitability for diversion does not relieve the prosecutor’s obligation to examine all of the relevant
factors and to set forth the required findings.” Id. The failure of the record to reflect that the District
Attorney considered all of the applicable factors would allow a reviewing court to find an abuse of
discretion. See State v. Carr, 861 S.W.2d 850, 858 (Tenn. Crim. App. 1993).

        The district attorney’s decision to grant or deny pretrial diversion is presumptively correct
and shall be reversed only when the defendant establishes that there has been an abuse of
prosecutorial discretion. Curry, 988 S.W.2d at 158. In reviewing the district attorney general’s
decision, the trial court is limited to the evidence originally considered by the district attorney
general. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). “The trial court may
conduct a hearing 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.” Curry, 988 S.W.2d 153 at 157-58 (citing Pinkham, 955 S.W.2d at 960). In order to
establish such an abuse of discretion, the record must show an absence of any substantial evidence
to support the district attorney’s refusal to grant pretrial diversion. Curry, 988 S.W.2d at 158.
Therefore, in a close case where the District Attorney could have legitimately granted or denied the
application, the trial judge must defer to the judgment of the District Attorney. Carr, 861 S.W.2d
at 856.




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        On appeal, the trial court’s findings of fact are binding on an appellate court unless the
evidence preponderates against those findings. Id. Therefore, we review to determine whether the
trial court’s decision is supported by a preponderance of the evidence. Curry, 988 S.W.2d at 158;
Pinkham, 955 S.W.2d at 960. When reviewing a denial of pretrial diversion, this Court may not
substitute its judgment for that of the district attorney’s even if we would have preferred a different
result. State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995).

        Although the defendant’s application suggests that he may be an excellent candidate for
pretrial diversion based upon his work history, attempts to seek treatment for his illnesses and
amenability to rehabilitation, the focus of diversion does not rest solely upon the alleged offender.
This Court has held on several occasions, that in appropriate cases the circumstances of the offense
and the application for deterrence may outweigh other relevant facts and justify a denial of pre-trial
diversion. Carr, 861 S.W.2d at 858. Here, the District Attorney General properly relied heavily
upon the circumstances of the offenses, the repetitive nature of Defendant’s conduct and the need
for deterrence to support denial of pretrial diversion. The district attorney found that the Defendant
became intoxicated, stole another’s property, evaded arrest and forced an officer to chase him on a
state highway at an excessive speed. The district attorney also learned that the Defendant had
apparently engaged in similar behavior prior to the instant charges. However, we note that the
evidence in this record does not preponderate against the trial court’s finding that the prosecutor
incorrectly considered the violation of public trust as a factor. This was not an appropriate factor for
consideration, since Defendant was not a highway patrolman at the time of these offenses. But Cf.
State v. Houston, 900 S.W.2d 712, 715 (district attorney denied pretrial diversion to a police captain
who assaulted a court administrator during business hours, and placed great weight on the fact that
the police captain had violated a position of public trust).

        Based upon the record, we conclude that the evidence presented by the Defendant in support
of his application for pretrial diversion, as well as other evidence considered by the district attorney,
could have supported either a grant or denial of diversion. In State v. Carr, this court held that

        It is not the trial court’s function to disapprove the denial whenever it disagrees with
        the prosecutor. It is obligated to defer to the prosecutor's discretion when the record
        contains any substantial evidence to support the decision. Thus, if the record would
        support either a grant or a denial of pretrial diversion, the trial court must defer to the
        prosecutor's discretionary decision.

861 S.W.2d at 856.

        While this case may be a close call regarding the Defendant’s suitability for diversion, we
find that the record does not show an absence of any substantial evidence to support the prosecutor’s
refusal to grant pretrial diversion. Curry, 988 S.W.2d at 158. The record reflects that the
prosecuting attorney considered the positive factors submitted by the Defendant. However, the
prosecutor, within his discretion, gave more weight to the factors that weighed against the
Defendant. As noted in Carr, a trial court’s disagreement with the prosecutor’s analysis of the


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circumstances, cannot support a finding of an abuse discretion. Carr, 861 S.W.2d at 856. We also
note that while the trial court found that the prosecutor failed to give proper consideration to the
mitigating factors submitted by the Defendant, the record indicates that these mitigating factors were
submitted on October 19, 1999, twenty days after the prosecutor’s denial letter of September 29,
1999. The defendant bears the burden of providing the prosecutor “with sufficient background
information and data to enable that officer to make a reasoned decision to grant or deny the relief
sought.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The applicant should provide the
prosecutor with evidence relating to all relevant factors to be considered by the prosecutor. Winsett,
882 S.W.2d at 810. Thus, even if some inappropriate factors were considered, this does not foreclose
a determination that substantial evidence still remains to support the prosecutor’s denial of pretrial
diversion. Carr, 861 S.W.2d at 857.

                                        III. CONCLUSION

        For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded
for further proceedings.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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