         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      May 9, 2000 Session

             STATE OF TENNESSEE v. DANIEL SHANE MALONE

                  Direct Appeal from the Circuit Court for Madison County
                          No. 97-853    John F. Murchison, Judge



                   No. W1999-01678-CCA-R9-CD - Filed November 8, 2000


The Defendant was indicted for statutory rape and contributing to the delinquency of a minor. The
District Attorney General denied the Defendant’s application for pretrial diversion. The trial court
subsequently granted pretrial diversion. Pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure, the trial court granted the State permission for an interlocutory appeal, and this Court
allowed the State’s appeal. On appeal, the State argues that the trial court erred in granting pretrial
diversion. We agree that the trial court committed reversible error in granting pretrial diversion and
remand to the circuit court for further proceedings.

Tenn. R. App. P. 9 Interlocutory Appeal by Permission from the Trial Court; Judgment of
                       the Circuit Court Reversed and Remanded.

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and JERRY L. SMITH, JJ., joined.

Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General,
James G. Woodall, District Attorney General, and Shaun A. Brown, Assistant District Attorney
General, for the appellant, State of Tennessee.

Tony A. Childress, Assistant Public Defender, Jackson, George Morton Googe, District Public
Defender; and Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellee,
Daniel Shane Malone.

                                             OPINION

       On November 24, 1997, the Madison County Grand Jury indicted the Defendant, Daniel

Shane Malone, for three counts of statutory rape and two counts of contributing to the delinquency

of a minor. The trial court ordered an investigation to determine whether the Defendant was suitable
for pretrial diversion. The pretrial investigation report indicated that the Defendant, who was twenty

years old at the time of the alleged offenses, had sexual intercourse with a fifteen-year-old girl on

three separate occasions. In her statement, the victim said that the Defendant provided her with

alcohol and marijuana before each encounter. The victim became pregnant and later had a

miscarriage. According to the report, the Defendant had no prior criminal history. The report also

showed that the Defendant had been working since he was seventeen years old in a masonry business

of which he was part-owner and that he expressed a willingness to make any restitution ordered.



       After the investigation report was released, but before an application for pretrial diversion

was filed, the District Attorney denied the Defendant's application citing the following reasons:

       1.      The facts of this case involve 4 occasions of Statutory Rape by the defendant
               on 3 different occasions, which resulted in the 15 year old victim becoming
               pregnant.
       2.      It is the defendant's responsibility to provide this office with sufficient
               evidence of his qualifications for pretrial diversion. The defendant has failed
               to provide this office with any evidence and having failed in this obligation
               the defendant cannot be granted pretrial diversion. State v. Herron, 767
               S.W.2d 151 (Tenn. 1989).
       3.      The defendant's crimes were not the result of impulse but required
               considerable effort and planning. State v. Holland, 661 S.W.2d 91 (Tenn.
               Crim. App. 1983).
       4.      The defendant has expressed no remorse for his conduct nor has he made any
               effort to make his victim whole. State v. Nease, 713 S.W.2d 90.
       5.      The defendant has a poor work history indicating a serious lack of motivation
               to successfully complete pretrial diversion.
       6.      No family or friends are forthcoming to aid or encourage the defendant in any
               pretrial diversion program. Without such encouragement the defendant
               cannot hope to successfully complete pretrial diversion.
       7.      Statutory Rape and Contributing to the Delinquency of a Minor are serious
               problems in this jurisdiction and allowing the defendant to participate in
               pretrial diversion would greatly undermine law enforcement efforts at
               curtailing this type of criminal activity. State v. Holland, 661 S.W.2d 91
               (Tenn. Crim. App. 1983).

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         8.       The defendant willingly involved a juvenile in his crime.
         9.       There is no indication that the defendant would have stopped his/her criminal
                  activity but for the intervention of law enforcement. State v. Markham, 755
                  S.W.2d 850.
         10.      The defendant was indicted for these multiple counts of Statutory Rape (3
                  counts) and Contributing to the Delinquency of a Minor (2 counts) on
                  November 24, 1997 and was arraigned on those charges on December 2,
                  1997, and did not apply for pretrial diversion until June of 1999, which has
                  caused a considerable delay.




         The District Attorney went on to say that he balanced the above listed factors against the

mitigating circumstances supplied to his office; however, the mitigating circumstances were not

explicitly listed in the denial. The Defendant filed an application for a writ of certiorari on August

4, 1999. After a brief certiorari hearing on September 14, 1999 which consisted of statements by

the attorneys and the exhibiting of pertinent documents,1 the trial court took the matter under

advisement. On October 27, 1999 the trial court entered an order stating in part that “the defendant

should be granted diversion because the defendant is charged with a Class E felony, the defendant

has no prior criminal record, and the defendant is 21 years of age. IT IS THEREFORE ORDERED,

ADJUDGED, AND DECREED that the decision of the District Attorney General to deny diversion

is overruled.” The trial court did not find that the District Attorney General abused his discretion.

From this record, we can only conclude that the trial court granted diversion to the Defendant

because the Defendant “has no prior criminal record, and . . . is 21 years of age” and because the

Class E felony charge in this case is an offense for which pretrial diversion is not excluded by statute


         1
          The documents exhibited consisted of the “denial” letter from General Woodall to Ms. King (Exhibit 1) and
the Jackson Police Departm ent Incident Rep ort (Exhibit 2). The trial court stated that it would also consider the “pre-
sentence report,” w hich wa s filed as Ex hibit “A” to the Petition for Writ o f Certiorari.

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as a possible disposition. The State of Tennessee, pursuant to the Tennessee Rules of Appellate

Procedure 9(d), now appeals the trial court's decision to allow pretrial diversion.



         Pretrial diversion allows the district attorney general to suspend prosecution for a period of

up to two years against a defendant who meets certain statutory requirements. See Tenn. Code Ann.

§ 40-15-105(a)(1)(A). In order to qualify for pretrial diversion, the defendant must not have

previously been granted diversion under this statute; must not have a prior misdemeanor conviction

for which a sentence of confinement was served or a prior felony conviction within a five-year

period after completing the sentence or probationary period for such prior conviction; and must not

be seeking diversion for a Class A or B felony, a sexual offense,2 driving under the influence, or

vehicular assault. Id. § 40-15-105(a)(1)(B)(i)(a)-(c). Such eligibility does not presumptively entitle

a defendant to pretrial diversion, but rather places such a decision within the discretion of the district

attorney so long as the defendant is statutorily qualified. State v. Curry, 988 S.W.2d 153, 157 (Tenn.

1999).



         It is the defendant's duty to demonstrate suitability for pretrial diversion. State v. Herron,

767 S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806, 809-10 (Tenn. Crim. App.

1993). However, this requirement does not relieve the prosecutor of his or her duty to consider and

articulate all the relevant factors. Curry, 988 S.W.2d at 157. The district attorney is required to

consider all relevant factors when determining whether or not to grant pretrial diversion. State v.


         2
           Statutory rape is not included as a “sexual offense” for which a defendant would be disqualified from seeking
pre-trial dive rsion. See Tenn. Code An n. § 40-15-105(a)(1)(B)(ii)(a)-(h).

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Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined

the criteria that should be considered by the prosecutor in granting or denying pretrial diversion:

        When deciding whether to enter into a memorandum of understanding under the
        pretrial diversion statute a 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.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also Curry, 988 S.W.2d at 157.



        Where pretrial diversion is denied by the district attorney, the factors and evidence

considered in making the decision must be clearly set forth in writing along with the weight accorded

to each factor. Pinkham, 955 S.W.2d at 960; Winsett, 882 S.W.2d at 806. The district attorney

general must do more than abstractly state that he or she has considered each of the factors. Herron,

767 S.W.2d at 156. Rather, the factors must be "clearly articulable and stated in the record."

Hammersley, 650 S.W.2d at 355. Failure to consider and articulate all of the relevant factors

constitutes an abuse of discretion. See Curry, 988 S.W.2d at 157-58.



        A defendant who has been denied pretrial diversion by the district attorney has the right to

petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. Tenn. Code

Ann. § 40-15-105(b)(3). Although presumptively correct, a trial court may overrule a district

attorney's denial of pretrial diversion where there has been an abuse of discretion. However, the trial


                                                  -5-
judge cannot simply substitute his or her own judgment for that of the district attorney. State v.

Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App 1980). To show prosecutorial abuse of discretion,

the record must lack any substantial evidence to support the denial of pretrial diversion. Curry, 988

S.W.2d at 158.



       The legislature has vested the authority to prosecute a case or divert it with the prosecutor

rather than the court. See Tenn. Code Ann. § 40-15-105; State v. Carr, 861 S.W.2d 850, 858 (Tenn.

Crim. App. 1993). In reviewing the prosecutor’s denial of diversion, the trial court must look at all

the relevant factors to determine whether the prosecutor considered them, and if he or she did not,

to determine whether pretrial diversion is appropriate. Herron, 767 S.W.2d at 156; Carr, 861 S.W.2d

at 858. In reviewing whether the prosecutor has abused his or her discretion regarding diversion,

the trial court must undertake the same process required of the prosecutor in considering and

weighing the relevant factors. Herron, 767 S.W.2d at 156.



       In the present case, there is nothing in the record to indicate that the trial court undertook the

appropriate weighing process. Nor is there anything in the record to indicate that the trial court

properly reviewed the District Attorney General’s denial of pretrial diversion for an abuse of

discretion. Based on the record before us, we can only conclude that the trial court improperly

substituted its judgment for that of the District Attorney General. Tennessee Code Annotated § 40-

15-105(b)(3) provides in pertinent part: “If the trial court finds that the prosecuting attorney has

committed an abuse of discretion in failing to divert, the trial court may order the prosecuting

attorney to place the defendant on diversion status on such terms and conditions as the trial court

                                                  -6-
may order.” Because the trial court failed to find that the prosecuting attorney committed an abuse

of discretion in failing to divert in this case, the trial court erred in ordering diversion for the

Defendant.



       For these reasons, we REVERSE the judgment of the trial court and REMAND this case to

the Madison County Circuit Court for further proceedings.




                                                      ___________________________________

                                                      ROBERT W. WEDEMEYER, JUDGE




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