              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                JUNE 1996 SESSION
                                                             FILED
                                                              October 10, 1997

STATE OF TENNESSEE,                 )                        Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
                                    )
              Appellee,             )      No. 02C01-9507-CC-00194
                                    )
                                    )       Hardin County
v.                                  )
                                    )       Honorable C. Creed McGinley, Judge
                                    )
SHONDA KAY McGILL,                  )       (Pretrial Diversion)
                                    )
              Appellant.            )



                                  DISSENTING OPINION



              I respectfully dissent from the majority opinion. I believe that the record

reflects a failure by the District Attorney to give due consideration to all of the factors

relevant to pretrial diversion so as to constitute an abuse of discretion. I believe that

the case should be remanded to the trial court for further proceedings.



              Our supreme court has provided particular factors that prosecutors are to

consider in exercising their discretion to grant or deny pretrial diversion. See State v.

Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). Given the judicial review process

provided by law, this has led to a recurring theme in reported cases about prosecutors

not showing on the record that they have duly considered all of the factors. See, e.g.,

State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988). Our supreme court

noted the continuing problem and stated that prosecutors must articulate the reasons

for denial and reflect on the record their consideration of all of the relevant factors.

State v. Herron, 767 S.W.2d 151, 155-56 (Tenn. 1989). In fact, it stated that trial courts

must follow a similar path in their review of pretrial diversion cases. Id. at 156.
              Thus, if a prosecutor does not show that he or she followed the

procedures and standards required by law for use and consideration in the decision-

making process for pretrial diversion, then the ultimate decision should not be entitled

to deference by a reviewing court. With the burden being upon the prosecutor to insure

that the record shows his or her due consideration of all of the required factors, we

should not presume that due consideration occurred when we are faced with a deficient

record. In other words, I do not believe that a reviewing court can say, as a matter of

law, that the prosecutor exercised sound discretion in making a decision that did not

result from consideration of all of the required factors.



              Once the trial court determines that the prosecutor failed to consider all of

the relevant factors, then it must determine the relative merits of the defendant’s claim

or, in the appropriate case, it may remand the matter to the prosecutor for further

consideration under the appropriate guidelines. See, e.g., State v. Winsett, 882 S.W.2d

806 (Tenn. Crim. App. 1993). In the present case, though, the trial court gave

deference to the prosecutor’s decision even though that decision was obtained without

following the required decision-making process. Such a deference, also given in the

majority opinion, was and is unwarranted.



              Relative to the offenses, the record reflects that the defendant drove her

then boyfriend to locations where he and another man burglarized homes -- two in one

night and another fifteen days later. The record indicates that no one was home at the

time of these burglaries.



              One victim wrote that her son’s cash savings (amount undisclosed) and

her jewelry (not expensive, but of irreplaceable sentimental value) were taken and that

she remains uneasy at night. She would like things returned and restitution to be paid,

but no amount is mentioned. She also stated that she thought the defendant should



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receive probation and community service obligations that would profit the defendant in

personal and community responsibility.



              Another victim wrote that her property loss was approximately two to three

thousand dollars, including guns, jewelry and family photographs. She now has a

house dog and sleeps with a loaded gun nearby. She requested restitution for what her

insurance has not covered. Also, she did not think that the defendant was remorseful

and stated that the defendant should be made “accountable” for her actions. There is

no information in the record regarding the views of the victims in the third case.



              Regarding the defendant, the record reflects that she was nineteen years

old at the time of the burglaries and had no prior criminal record of any type. She

received a GED, is single, and has resided with her mother since her return to Hardin

County, a matter of weeks before the offenses occurred. She had a good, albeit short,

work history, interrupted by her moves to Memphis, then Nashville, and then back to

Hardin County.



              The defendant acknowledged occasional use of alcoholic beverages and

the use of marijuana or cocaine a total of five times, the last being the month of the last

burglary and her arrest. There is no indication of any medical or mental health

problems. The petition for pretrial diversion, signed under oath by the defendant,

includes the following:

                     3. She further avers that she has a proper attitude and
              behavior since her arrest; that she has no continuing criminal
              involvement, that she has a proper home environment and that
              she has no current drug or alcohol use problem; that she is
              emotionally stable, that she attends the Baptist church, that her
              general reputation is good and has exhibited family
              responsibility and has a proper respect and attitude for the law
              enforcement for the State of Tennessee.

                     4. She further avers that she will not become a repeat
              offender and will state and show to the Court that the incidents
              for which she was indicted are an isolated incident in her life


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              and that she has learned her lesson and will not again violate
              the laws of the State of Tennessee.

                    5. She avers that she has and can continue to
              demonstrate that she should be eligible for the preferred
              treatment of pre-trial diversion and that society will be better
              served if she is placed on diversion.

The foregoing rendition of the defendant’s background, social history, and expressed

attitudes is detailed in this opinion in light of the fact that our supreme court has stated

that the focus of a diversion consideration should be on the defendant’s amenability to

correction, with the ultimate issue being to what extent diversion serves the ends of

justice and the best interest of both the public and the defendant in this particular case.

Hammersley, 650 S.W.2d at 355.



              Obviously, as the majority opinion notes, the nature and circumstances of

the criminal conduct or the particular need for deterrence may be of “such

overwhelming significance that they outweigh all other factors.” Markham, 755 S.W.2d

at 853. However, I do not believe that this case falls into either such category whereby

the defendant is excluded from diversion regardless of her background and

rehabilitation potential. Pretrial diversion has been approved in cases involving greater

financial losses derived from intentionally planned criminal conduct for a greater period

of time than reflected in the present case. See Herron, 767 S.W .2d at 152, 155 (two

larcenies by trick totaling eleven thousand dollars, committed eight days apart);

Markham, 755 S.W.2d at 851, 853 (two-count indictment regarding conspiracy to

defraud the state, six thousand four hundred dollars actually paid over several months).




              Thus, I would remand the case to the trial court for it to determine whether

it is appropriate to remand the matter to the prosecutor for reconsideration, with both

parties having the opportunity to present a more detailed record. If the trial court

determines that such remand would be inappropriate under the circumstances, then it



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should decide the issue of diversion upon full and due consideration of all of the factors

relevant to pretrial diversion.



                                                ___________________________
                                                Joseph M. Tipton, Judge




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