        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE               FILED
                        JULY SESSION, 1998        September 10, 1998

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
STATE OF TENNESSEE,        )   C.C.A. NO. 03C01-9801-CR-00016
                           )
      Appe llant,          )
                           )
                           )   SULLIVAN COUNTY
VS.                        )
                           )   HON. R. JERRY BECK
VELMA JEAN FREEMAN,        )   JUDGE
                           )
      Appellee.            )   (Pretrial Diversion)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SULLIVAN COUNTY


FOR THE APPELLEE:              FOR THE APPELLANT:

RICHARD A. SPIVEY              JOHN KNOX WALKUP
142 Cherokee Street            Attorney General and Reporter
Kingsport, TN 37660
                               TODD R. KELLEY
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               GREELEY W ELLS
                               District Attorney General

                               JOSE PH E UGE NE P ERR IN
                               Assistant District Attorney General
                               Sullivan County Justice Center
                               Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       This is an inte rlocuto ry app eal pu rsuan t to Ru le 9 of the Tennessee Rules

of Appellate Procedu re. The State o f Ten ness ee ap peals from th e trial co urt’s

determination that the District Attorney Gen eral ab used his discretion by denying

pretrial divers ion. W e affirm the judgm ent of the tria l court.



       The Defendant was indicted on one count of possession of marijuana and

one count of introducing the marijuana into a penal institution.1 The ba sic facts

are that the Defendant attempted to deliver approximately 7.9 grams of marijuana

to her adult son, who was incarcerated in the Su llivan C ounty jail. She riff’s

deputies obse rved h er plac ing a w hite en velope unde r the ce ll block door. When

it was determined that the envelope contained marijuana, she was arrested.



       The Defendant applied for pretrial diversion pursuant to Tennessee Code

Annotated § 40-15-105. Under our law, she was entitled to be considered. The

District Attorney denied the Defendant’s application, setting forth his reasons for

denial in a written response. The Defendant submitted a petition for writ of

certiorari to the Criminal Court of Sullivan County, asserting that the District

Attorney abus ed his discre tion by d enying pretrial d iversion. The District Attorney

submitted his record concerning his denial of pretrial diversion and, after

reviewing this record, the trial court found that the District Attorney had abused

his discretion and ordered that the Defendant be grante d pretr ial divers ion. It is

from this order of the trial court that the State appeals.



       1
           Tenn. Code Ann. § 39-17-417 and Tenn. Code Ann. § 39-16-201.

                                          -2-
       The Pretrial Diversion Act provides a means of avoiding the consequences

of a public prosecution for those who have the potential to be rehabilitated and

who may thus avoid future criminal charges. See Tenn. Code Ann. § 40-15-105.

Pretrial diversion is extraordinary relief for which the Defendant bears the burden

of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 19 93); State

v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980). The general criteria for

probation and pretrial diversion a re similar, but shou ld be more stringently applie d

to diversion applican ts. Poplar, 612 S.W.2d at 501.



       The district attorne y is vested w ith the discretion to approve or deny pretrial

diversion. See Tenn. Code Ann. § 40-15-105(b)(3). A defendant who applies

for and is denied pretrial diversion ma y “petition for a writ of certiorari to the trial

court for an abuse of prosecutorial discretion.” Tenn. Code Ann. § 40-15-

105(b)(3). The trial judge cannot substitute his judgment for that of the district

attorney when re viewing a denial of p retrial diversio n. State v. Watkins, 607

S.W.2d 486, 488 (Tenn. Crim. App. 1980). The district attorney’s decision is

viewed as ?presumptively correct” and will not be set aside unless there is a

finding of gross a nd pate nt abus e of discre tion. State v. Hammersley, 650

S.W.2d 352, 356 (Tenn. 1983) (citing Pace v. State, 566 S.W.2d 861, 870 (Tenn.

1978)).



       The trial cou rt’s sco pe of re view is limited to th e inform ation p rovide d in

the record upon which the district attorne y based the decis ion. State v. Carr, 861

S.W.2d 850, 8 55-56 (Ten n. Crim . App. 19 93); Poplar, 612 S.W .2d at 500 . “In

view of this evidentiary restrictio n, an e videntia ry hea ring wo uld seem unneeded

in the usual ca se. How ever, a he aring m ay be us eful to clarify matters already

                                          -3-
in the record ab out which there may be so me dispu te.” State v. W insett, 882

S.W.2d 806, 810 (Tenn. Crim. App. 1993). If there is a factual dispute, the trial

judge should conduct an evidentiary hearing to resolve the dispute before

determining whether there has been an abuse of discretion in denying diversion.

State v. Pinkham, 955 S.W .2d 956, 960 (Tenn. 199 7).



          In cases in wh ich the facts are un disputed, as the y generally are in this

case, the issue primarily bec omes a question of law, an d this Court therefo re is

not bound by the lower court’s decision. Carr, 861 S.W.2d at 856. In such a

case, the underlying issue is whether, as a matter of law, the district attorney

general abused his or her discretion. Id. Our review focu ses on wh ether there

is substantial evidence in the record to suppo rt the district atto rney’s refu sal to

divert.     In a close case, if the record supports the decision to grant or deny

pretrial diversion, “ <it cannot be an abuse of discretion to decide the case either

way.’” Carr, 861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286

(Tenn . 1978)).



          When a pretrial diversion request is denied , the district atto rney m ust state

the specific reasons for denial in the record to preserve those reasons for

meaningful appellate review.          State v. Herron, 767 S.W .2d 151, 156 (Tenn.

1989). The following factors should be considered to determine whether pretrial

diversion should b e grante d:

          ?[the] circumstances of the offense; the criminal record, social
          history and present condition of the de fenda nt, inclu ding h is
          mental and physical conditions where appropriate; the deterrent
          effect of punish ment upon other crim inal ac tivity; defe ndan t’s
          amen ability to correction; the likelihood that pretrial d iversion will
          serve the ends of justice and the best interests of both th e pub lic
          and defen dant; a nd the applicant’s attitude, behavior since

                                                 -4-
       arrest, prior reco rd, home environment, current drug usage,
       emotional stability, past em ployme nt, general reputation, marital
       stability, family re spons ibility and attitud e of law en forcem ent.”


State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.

Markham, 755 S.W .2d 850 , 852-53 (Tenn . Crim. A pp. 198 8)).



       Due to the limited scope of certio rari revie w, a form al written respo nse is

required to demonstrate that the district attorney considered all the relevant

factors and to expla in why c ertain factors outweighed others. The narrow scope

of review has made the district attorney’s written response of primary importance.

Indeed, in a revie w in wh ich no hearin g is he ld, the d istrict atto rney’s letter is the

only concre te record from wh ich to evaluate whether an abuse of discretion has

occurre d.



       As our supreme court recently stated, a district attorney general is not

required to inclu de in th e reco rd all the evidence relied upon to deny diversion.

State v. Pinkham, 955 S.W .2d 956, 960 (Tenn. 199 7). The district attorney

general is required to identify the factua l basis and rationa le for the decision to

deny pretrial diversion. Id. The information should be sufficiently detailed so that

the defe ndant c an asc ertain the e xistence o f any factua l disputes . Id.



       In his lette r deny ing the Defe ndan t’s app lication to pretr ial diversion, the

District Attorney referred to th e Defend ant’s “formal requ est” for diversion.

Although no written application for pretrial diversio n is in the record, the parties

stipulated for a background investigation pursuant to Tennessee Code Annotated

§ 40-15-104. The report of this investigation reflects that the Defendant was



                                            -5-
forty-three years old, divorced, and the mother of four children. She has been

married five times. She dropped out of school after the sixth grade and was

married for the first time at age fourteen. The Defendant reported her health as

“fair” and stated that she has no history of alcohol abuse and has never used

illegal drugs. At the time the background investigation was prepared, she was

employed as a housekeeper at a Kingsport, Tennessee motel and her employer

confirmed that she was a good employee. Prior to this job she had briefly worked

as a housekeeper at another motel in the Kingsport area, and that employer also

confirmed that she w as a go od work er. Prior to that she reported that she was

employed for seven ye ars as a c ook at a c lub in King sport. One of he r daughters

and a granddaughter lived with her.           Another child, along with five of the

Defe ndan t’s siblings, lived near her in the Kingspo rt area. Her only prior rec ord

of criminal activity was a conviction of driving without a license and a charge of

violation of “light law,” bo th of which occurred some five years prior to the

prepara tion of the p retrial diversio n report.



       The pretrial d iversion report conta ined th e following statement from the

Defen dant co ncernin g the cha rges ag ainst her:

       On the date o f the offe nse, it w as req ueste d that I b ring in a bagg ie
       with marijuana in it. I was told to put it in an en velope and k ick it
       under the bars . I made a big mis take by d oing this. I had a serious
       lack of judgment. I wish I had never done this. It was stupid and
       irresponsible. I will never in this or any other life ever do it again.
       I would be suitable for proba tion be caus e I have never been in
       trouble before, and I guarantee I w ill never be in trouble ag ain. I
       truly am sorry and I regret that this happened.


       In his le tter den ying the Defe ndan t’s application for pretrial diversion, the

District Attorney General stated that his decision was based on the following

factors:

                                           -6-
             (1)    The defendant’s actions of attempting to introduce
      drugs into the Sullivan Cou nty Jail is of special conce rn to the Sta te
      due to problems regarding the possession and use of drugs by
      inmates of this facility. The defendant’s deliberate and intentional
      act endangered the inmates incarcerated at this facility as well as
      endangered the men and women employed at this facility. The
      introduction of drugs and oth er contra band in to the jail is a serious
      problem of epidemic proportions. The granting of pre-trial diversion
      for such a crim e will reduce the resistance, if not enco urage, others
      who m ight enga ge them selves in like or similar c onduc t.

             (2)    The defendant’s unstable work record, her family and
      social history, as we ll as her lack of education demonstrate her to be
      an unacc eptable candida te for diversio n. It should be noted that the
      defendant was trying to pass drugs to her own child who was
      incarcerated on felony charges at the time.

             (3)    The defendant has previously been convicted of no
      driver’s license.


      After reviewing the record submitted by the Dis trict Atto rney G enera l, the

trial judge entere d a m emo randu m ord er whic h inclu ded fin dings of fact a nd his

analys is of the applicable law. The trial judge observed that the first factor relied

upon by the District Attorney General could be generally categorized as “the

circumstances of the case and the need for deterrence.”               The trial judge

recognized that unde r Tenn essee law, ?the circumstances of the case and the

need for deterrence . . . cannot be given controlling weight [in determining

whether to grant pr etrial diversio n] unless [these fac tors] are <of such

overwhelming significanc e that they (neces sarily) outw eigh all oth er factors.’”

See State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.

Markham, 755 S.W .2d 850 , 853 (T enn. C rim. App . 1988)). ?In the absence of

such exceptional circum stance s, <the district attorney general must consider

evidence which ten ds to show th at the (de fendan t) is amen able to co rrection . .

. and is not likely to comm it further criminal acts.’” Id. (quoting Markham, 755

S.W.2d at 853 ).     The trial court furthe r noted that the District A ttorney ’s



                                         -7-
generalized statement concerning the circumstances of the offense and the need

for deterrence would apply to any Class C, D, or E felony, but noted that the

legislature has specifically provided that a defendant charged with introducing

marijuana into a penal institution is eligible for pretrial diversion.



       Concerning the se cond factor s et forth b y the D istrict Atto rney G enera l in

denying diversion, the trial judge noted that the Defendant was forty-three years

old and had no significant criminal record. The judge noted that “the Defendant

left schoo l at age fou rteen, go t married , and ha d four ch ildren. She is obviou sly

under-educated, works as a maid, and is described as a good worker.” The trial

judge express ed his co ncerns about the constitution ality of denying diversion

based upon a lack of formal education and further noted that the legislature had

set no ed ucationa l requirem ents for a p erson s eeking diversion.



       W e can un derstand why a district attorn ey gene ral would prefer no t to

grant pretrial diversion to anyone charged with trying to deliver marijuana to an

inmate in a loca l jail or other penal institution. However, as the trial judge pointed

out, the law enacted by our legislature provides that someone who commits such

a crime is eligible for diversion unless the pe rson’s prior crimina l record renders

them ineligible. While the district attorney has the discretion to grant or deny

diversion to eligible defendants, that discretion is not absolute.



       After reviewing the record submitted by the District Attorney General, the

trial court implicitly found that the co nclusory statem ents asserted by the District

Attorney Gene ral did not s et forth a suffic ient ba sis for denying pretrial diversion

to the Defendant, and based on the record, the trial judge determined that

                                          -8-
denying the Defendant pretrial diversion constituted an abuse of discretion. From

our review of the record, we are unable to conclude that the trial judge erred.

The judgment of the trial court is accordingly affirmed.



                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                                       -9-
