         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE         FILED
                             MAY 1998 SESSION          July 16, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 03C01-9709-CC-00426
      Appellee,                     )
                                    )    SEVIER COUNTY
VS.                                 )
                                    )    HON. REX HENRY OGLE,
RANDY LEMING,                       )    JUDGE
                                    )
      Appellant.                    )    (Statutory Rape)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JERRY K. GAYLON                          JOHN KNOX WALKUP
119 Court Avenue                         Attorney General and Reporter
Sevierville, TN 37862-3511
                                         TODD R. KELLEY
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         ALFRED C. SCHMUTZER, JR.
                                         District Attorney General

                                         CHARLES E. ATCHLEY, JR.
                                         G. SCOTT GREEN
                                         Asst. District Attorneys General
                                         125 Court Avenue, Room 301-E
                                         Sevierville, TN 37862




OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE
                                           OPINION



         The defendant, Randy Leming, was indicted by a grand jury in Sevier County

on two (2) counts of statutory rape, Class E felonies. He applied for pretrial

diversion, which was denied by the district attorney’s office. He filed a petition for

writ of certiorari in the trial court to review the denial of pretrial diversion. The trial

court sustained the denial, and defendant subsequently pled guilty to both counts

of statutory rape. The trial court sentenced defendant as a Range I, standard

offender, to concurrent sentences of eighteen (18) months imprisonment for each

offense. On appeal, defendant contends that the trial court erred in:

         (1) sustaining the prosecutor’s denial of pretrial diversion;

         (2) denying judicial diversion; and

         (3) imposing an excessive sentence to be served in incarceration.

We affirm the judgment of the trial court.



                                            FACTS



         The defendant was the pastor at Shiloh Baptist Church in Sevier County. In

1991, the female victim, B.J.,1 began attending that church on a regular basis. The

defendant and the victim began developing a friendship soon thereafter. B.J.

looked to defendant for spiritual guidance, and defendant often counseled her when

she developed problems with family and at school. Their relationship began to

escalate gradually until 1993 when they started to kiss and engage in sexual

“touching.” In May 1994, the victim performed oral sex on defendant while they

were at a friend’s trailer. In June 1994, the victim once again performed oral sex on

defendant. The victim was sixteen (16) years of age at the time, while defendant

was thirty-one (31) years of age.

         At the time of the offenses, defendant was married and had no prior criminal



         1
             It is the policy of this Court not to reveal the names of minor victims of sexual
abuse.

                                                2
record. He reported no drug or alcohol problems and had an excellent reputation

in the community. In support of his application for pretrial diversion, he submitted

approximately thirty (30) letters from friends and colleagues attesting to his good

moral character.

       In considering pretrial diversion, the prosecutor acknowledged the

defendant’s many positive qualities.          However, diversion was denied on the

following grounds:

       (1) the defendant’s conduct persisted over a long period of time,
       indicating a “protracted pattern of knowingly violating the law”;

       (2) the defendant, as a pastor, abused a position of trust as the victim
       was a member of defendant’s congregation;

       (3) the victim has suffered significant emotional trauma; and

       (4) there is a wide discrepancy between the defendant’s age and the
       victim’s age.2

       The trial court held a hearing to determine if the prosecution abused its

discretion in denying diversion. Upon its review of the denial of pretrial diversion,

the trial court focused on the abuse of trust by the pastor with a juvenile member of

his congregation. The court also noted that while the indicted offenses did not

occur until 1994, the “inappropriate contact” began well before 1994. Therefore, the

trial court found no abuse of discretion and upheld the prosecutor’s decision to deny

pretrial diversion.

       Upon the conclusion of this hearing, the trial court allowed a recess for

defendant to confer with his counsel. Upon returning to open court, the defendant

then entered open pleas of guilty to both counts of statutory rape. The trial court

heard arguments from counsel concerning judicial diversion and defendant’s

sentences. The trial court then denied judicial diversion and sentenced defendant

to concurrent terms of eighteen (18) months imprisonment for both offenses.




       2
         Attached as exhibits to the letter denying diversion were: (1) a letter written by a
psychologist explaining the extent of the victim’s emotional trauma; (2) a twenty (20) page
statement written by the victim detailing her relationship with the defendant; and (3) a letter
written by the defendant to the victim explicitly, graphically and lewdly describing his sexual
“fantasy” with the victim.

                                              3
                              PRETRIAL DIVERSION



       In his first issue, defendant claims that the trial court erred in sustaining the

district attorney’s decision to deny pretrial diversion. He argues that he is a good

candidate for pretrial diversion because of his lack of criminal record, good work

history and excellent reputation in the community. He claims that the district

attorney erroneously refused to consider his positive attributes and amenability to

rehabilitation. Therefore, he asserts that the district attorney abused his discretion,

and the trial court should have granted pretrial diversion.

                                          A.

       We first note that defendant did not properly reserve a certified question of

law for appeal as a condition of his guilty plea under Tenn. R. Crim. P. 37(b)(2)(iv).

In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supreme Court

delineated certain prerequisites to considering the merits of a certified question of

law:

       [T]he final order or judgment from which the time begins to run to
       pursue a T.R.A.P. 3 appeal must contain a statement of the
       dispositive certified question of law reserved by defendant for
       appellate review and the question of law must be stated so as to
       clearly identify the scope and the limits of the legal issue reserved. .
       . . Also, the order must state that the certified question was expressly
       reserved as part of a plea agreement, that the State and the trial
       judge consented to the reservation and that the State and the trial
       judge are of the opinion that the question is dispositive of the case. Of
       course, the burden is on defendant to see that these prerequisites are
       in the final order and that the record brought to the appellate courts
       contains all of the proceedings below that bear upon whether the
       certified question of law is dispositive and the merits of the question
       certified. No issue beyond the scope of the certified question will be
       considered.

Id. at 650. The appellant in Preston was reserving a certified question of law as part

of a plea agreement pursuant to Tenn. R. Crim. P. 37(b)(2)(i), whereas in this case

defendant entered an open plea of guilty and attempted to reserve a certified

question of law under Tenn. R. Crim. P. 37(b)(2)(iv). However, the requirements of

Preston apply for the consideration of a certified question of law reserved under

Tenn. R. Crim. P. 37 (b)(2)(i) or (iv). Id.

       In this case, the defendant has not complied with the requirements mandated



                                              4
by Preston. The judgment forms dated April 9 and entered April 11 contain no

statement of the dispositive certified question of law reserved by defendant. Nor do

the judgments state that the trial court consented to the reservation of the certified

question and agreed that the issue was dispositive of the case.

         The order of the trial court stating that “the Defendant reserved the issue of

the Court’s denial of his application for pre-trial diversion” does not rectify this

situation. The order was dated approximately twelve (12) days after the filing of

notice of appeal and over thirty (30) days after the entry of the judgments of

conviction. The trial court loses jurisdiction upon the filing of the notice of appeal

and loses its power to amend the judgment. State v. Pendergrass, 937 S.W.2d

834, 837 (Tenn. 1996). An order entered subsequent to the filing of notice of

appeal will not serve to cure the defect of failing to properly reserve a certified

question of law. Id. at 837-38.3

                                             B.

         Nevertheless, we will address this issue in the interest of justice. The

decision to grant or deny an application for pretrial diversion is within the discretion

of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see also State

v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900 S.W.2d 712,

714 (Tenn. Crim. App. 1995); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App.

1993).

         A prosecutor's decision to deny diversion is presumptively correct, and the

trial court should only reverse that decision when the appellant establishes a patent

or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App.

1996); Houston, 900 S.W.2d at 714. The record must be lacking in any substantial


         3
          We note that the certified question of law must be “dispositive of the case” under
Tenn. R. Crim. P. 37(b)(2)(iv). Generally, an issue is dispositive only when the appellate
court must either affirm or reverse and dismiss. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn.
Crim. App. 1984). It is an unresolved issue whether remanding for entry of an order of
pretrial diversion is “dispositive of the case.” Pretrial diversion suspends prosecution for a
specified period of time conditional upon the performance of certain conditions and may be
subsequently terminated and prosecution resumed under certain circumstances. Tenn. Code
Ann. § 40-15-105(a) and (d). Yet, we also recognize that recently adopted Tenn. R. Crim.
P. 38 allows either an interlocutory appeal or appeal after final judgment from a denial of
pretrial diversion. However, we need not decide whether the issue of pretrial diversion is
“dispositive of the case” since the parties did not comply with the Preston requirements.

                                              5
evidence to support the district attorney general’s decision before an abuse of

discretion can be found. State v. Pinkham, 955 S.W.2d at 960; State v. Carr, 861

S.W.2d at 856. The trial court may not substitute its judgment for that of the district

attorney general when the decision of the district attorney general is supported by

the evidence. State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980).

       Our review focuses on whether there is substantial evidence in the record to

support the district attorney’s refusal to divert.        The underlying issue for

determination on appeal is whether or not, as a matter of law, the prosecutor

abused his or her discretion in denying pretrial diversion. State v. Brooks, 943

S.W.2d 411, 413 (Tenn. Crim. App. 1997).

       In upholding the district attorney’s decision to deny diversion, the trial court

was concerned that defendant’s “inappropriate behavior” with the victim occurred

over a long period of time and found that defendant’s abuse of his position of trust

made this situation more egregious. We agree. According to the victim’s statement

relied upon by the district attorney, the defendant befriended the victim when she

was a young girl. He actively pursued a romantic relationship with the victim, and

they eventually engaged in sexual “touching.” The victim’s statement outlined

numerous instances of inappropriate sexual behavior which culminated into two (2)

instances of oral sex. This was not aberrant behavior on defendant’s part, as the

romantic relationship lasted approximately one (1) year.          Compare State v.

Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (allowing pretrial diversion where

defendant’s offenses were characterized as “apparently aberrant”).

       Most importantly, defendant used his position as pastor to gain the victim’s

trust. The victim looked to defendant as her spiritual advisor and confidant, and he

took advantage of her innocence.

       Although we commend defendant’s otherwise impeccable record and

reputation, we find that his abuse of a position of trust and the duration of his

conduct outweighs the factors favoring diversion. Accordingly, the trial court did not

err in sustaining the prosecutor’s decision to deny pretrial diversion.

       This issue has no merit.



                                          6
                                    SENTENCING



       In his last two issues, defendant claims that the trial court erred in denying

judicial diversion and in imposing an unreasonable sentence. He argues that the

trial court imposed an excessive sentence of eighteen (18) months. He further

asserts that he is a favorable candidate for alternative sentencing, and the trial court

erred in requiring that he serve his sentence in confinement. Finally, he contends

that he is an excellent candidate for judicial diversion, and the trial court erred in

denying judicial diversion.

                       A. Sentencing Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the

range for enhancement factors and then reduce the sentence within the range for

the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by the statute, as the weight given to each factor is left to

the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.


                                           7
Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).

                             B. Length of Sentence

       Defendant contends that the sentence imposed by the trial court is

excessive. He claims that he is entitled to the minimum one (1) year sentence

because of his lack of prior record and excellent reputation in the community.

       In determining the length of defendant’s sentence, the trial court found that

defendant had abused a position of private trust. Tenn. Code Ann. § 40-35-

114(15). The court found that no statutory mitigating factors were applicable;

however, the trial court found that defendant’s otherwise exemplary life was a

mitigating factor. Tenn. Code Ann. § 40-35-113(13). The trial court weighed the

enhancement factor along with the mitigating factor and determined that a sentence

of eighteen (18) months was appropriate.

       Under our de novo review, we also note that this offense was committed to

gratify the defendant’s desire for pleasure or excitement. Tenn. Code Ann. § 40-35-

114(7). From a reading of the victim’s statement and the various letters written by

the defendant to the victim, it is apparent that this factor should apply. See State

v. Walton, 958 S.W.2d 724, 730 (Tenn. 1997) (upholding the application of this

factor when defendant was convicted of aggravated rape and incest); see also State

v. Roy David McCarter, C.C.A. No. 03C01-9402-CR-00050, Blount County (Tenn.

Crim. App. filed July 14, 1994, at Knoxville), perm. to app. dismissed (Tenn.

November 28, 1994) (finding that Tenn. Code Ann. § 40-35-114(7) was applicable

even though defendant convicted of statutory rape).

       Although defendant complains that he is entitled to the minimum sentence

because of “his being a good and productive citizen,” the trial court considered this

as a mitigating factor. However, the trial court concluded that the abuse of private

trust outweighed that mitigating factor.     The trial court has the discretion to

determine the particular weight to be given enhancement and mitigating factors.


                                         8
See State v. Moss, 727 S.W.2d at 238. The trial court enhanced the defendant’s

sentence to eighteen (18) months, six (6) months above the minimum for a Range

I, standard offender. Defendant has not met his burden of showing that the

sentence imposed by the trial court was improper. See Tenn. Code Ann. § 40-35-

401(d), Sentencing Commission Comments.

       This issue is without merit.

                           C. Alternative Sentencing

       Defendant also claims that he is presumed to be a favorable candidate for

alternative sentencing, and the trial court erred in imposing a sentence to be served

in imprisonment. Under the Criminal Sentencing Reform Act of 1989, trial judges

are encouraged to use alternatives to incarceration. An especially mitigated or

standard offender convicted of a Class C, D or E felony is presumed to be a

favorable candidate for alternative sentencing options in the absence of evidence

to the contrary. Tenn. Code Ann. § 40-35-102(6).

       In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.

       A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d



                                         9
435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.

       There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467

(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of

alternative sentencing.    State v. Dowdy, 894 S.W.2d at 305.          In summary,

sentencing must be determined on a case-by-case basis, tailoring each sentence

to that particular defendant based upon the facts of that case and the

circumstances of that defendant. State v. Moss, 727 S.W.2d at 235.

       In determining that defendant’s sentence should be served in incarceration,

the trial court once again noted the defendant’s lack of prior criminal history and

admirable work and social history. However, the trial court found that the nature of

the offense outweighed defendant’s commendable attributes. The trial court also

focused on the abuse of defendant’s position of trust, stating, “it is that because of

[defendant’s] position, his position of private trust, he was able to continue and

foster this illegal activity for over two years.” The trial court found that allowing

defendant to serve his sentence on probation would depreciate the seriousness of

the offense. Therefore, the trial court sentenced defendant to eighteen (18) months

confinement.

       Probation may be denied based solely upon the circumstances surrounding

the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);

State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, the

circumstances of the offense as committed must be especially violent, horrifying,

shocking, reprehensible, offensive or otherwise of an excessive or exaggerated

degree; and the nature of the offense must outweigh all factors favoring probation.

State v. Hartley, 818 S.W.2d at 374-75.

       We agree with the trial court that the nature of the offenses committed



                                         10
outweigh all other factors in favor of alternative sentencing. The defendant initiated

a relationship with a juvenile member of his congregation.               The relationship

progressed and continued over an extended period of time, even though the

instances of sexual penetration occurred within a short period of time. In the course

of this relationship, defendant wrote many letters to the victim, including one which

described an explicit and graphic sexual “fantasy” about the victim. We conclude

that the offenses committed were especially shocking and reprehensible to justify

the denial of probation.

       Furthermore, defendant abused his position of trust as a pastor. Tenn. Code

Ann. § 40-35-114(15).        In addition, these offenses were committed to gratify

defendant’s desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114(7).

These enhancement factors are relevant in determining whether an alternative

sentence is appropriate. Tenn. Code Ann. § 40-35-210(b)(5).

       We, therefore, hold that the trial court did not err in failing to grant an

alternative sentence.4

       This issue is without merit.

                                 D. Judicial Diversion

       Defendant also contends that the trial court abused its discretion in denying

judicial diversion. When a defendant contends that the trial court committed error

in refusing to impose a sentence pursuant to Tenn. Code Ann. § 40-35-313,

commonly referred to as “judicial diversion,” this Court must determine whether the

trial court abused its discretion in failing to sentence pursuant to the statute. State

v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v. Anderson, 857

S.W.2d 571, 572 (Tenn. Crim. App. 1992); State v. George, 830 S.W.2d 79, 80

(Tenn. Crim. App. 1992). Judicial diversion is similar to pretrial diversion; however,

judicial diversion follows a determination of guilt, and the decision to grant judicial

diversion rests with the trial court, not the prosecutor. State v. Anderson, 857



       4
         Since the defendant received a sentence of less than two (2) years, the remainder of
his sentence will be suspended upon his reaching his release eligibility date. See Tenn. Code
Ann. § 40-35-501(a)(3). The district attorney may petition the trial court for denial of the
suspension only under certain circumstances. Tenn. Code Ann. § 40-35-501(a)(6)(A).

                                             11
S.W.2d at 572.

       The criteria that must be considered in determining whether an eligible

accused should be granted judicial diversion include: (a) the defendant’s

amenability to correction; (b) the circumstances of the offense; (c) the defendant’s

criminal record; (d) the defendant’s social history; (e) the defendant’s physical and

mental health; and (f) the deterrence value to the defendant as well as to others.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). An additional

consideration is whether judicial diversion will serve the ends of justice, i.e., the

interests of the public as well as the defendant. Id.

       The trial court denied judicial diversion on the same grounds as its denial of

alternative sentencing, namely the nature of the offense in light of (1) the length of

time during which the improper conduct occurred and (2) the defendant’s abuse of

a position of private trust. We conclude that the record fully supports the trial court’s

decision to deny judicial diversion.

       This issue has no merit.




                                    CONCLUSION



       We find that the trial court properly upheld the district attorney’s decision to

deny pretrial diversion. We further find that the sentence imposed by the trial court

is appropriate under the facts of this case. Accordingly, the judgment of the trial

court is affirmed.




                                                   JOE G. RILEY, JUDGE



CONCUR:




                                           12
JOSEPH M. TIPTON, JUDGE




CURWOOD WITT, JUDGE




                          13
