        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 12, 2015 Session


             STATE OF TENNESSEE v. SUSAN GAIL STEPHENS

                   Appeal from the Circuit Court for Coffee County
                       No. 35,064F    Vanessa Jackson, Judge




                  No. M2014-01270-CCA-R9-CD – Filed July 7, 2015




In this interlocutory appeal, Susan Gail Stephens (“the Defendant”) challenges the
prosecutor‟s denial of her application for pretrial diversion. She asks this court to remand
the case to the prosecutor with instructions that the Defendant be granted pretrial
diversion. She also asks us to instruct the prosecutor to grant pretrial diversion nunc pro
tunc to the Defendant‟s 2012 update to her application for pretrial diversion. Upon
review, we find that there is no substantial evidence in the record to support the denial of
pretrial diversion. Accordingly, we reverse the order of the trial court and remand the
case to the trial court with instructions that the Defendant be granted pretrial diversion
upon the terms and conditions of the diversion to be established by the trial court.
However, we decline to instruct that pretrial diversion be granted nunc pro tunc to 2012.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Edward M. Yarbrough and J. Alex Little, Nashville, Tennessee, for the Appellant, Susan
Gail Stephens.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Craig Northcott, District Attorney General; and Jason M. Ponder, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

                         Factual and Procedural Background

        This is the third time this case has been appealed to this court from a denial of
pretrial diversion. In the first appeal, we summarized the facts as follows:

              The record in this case contains two recitations of the facts. In her
      pretrial diversion application, the Defendant recounted the facts as follows:

                    On February 24, 2006, I was with [the victim] and
             other teenagers in my car in the Eaves‟ driveway and they had
             alcoholic beverages. They appeared to be intoxicated. The
             next night, Saturday, February 25, 2006, I was at the home of
             Chris and Kelly Eaves when the teenagers were again present
             and were drinking. I drank some beer and probably this is
             what caused me to lose my normal inhibitions and led to what
             happened later.

                    My memory of the exact events is hazy. However, I
             know that I became physically involved with [the victim] and
             we had intercourse. I am very sorry for what I did. This
             event has had a devastating effect on me and my family. I
             immediately went to seek treatment with a counselor. I did
             this even before I got a call from the investigator. The
             therapist is helping me understand why this happened and is
             helping me to prevent anything like this from happening in
             the future.

            The State compiled a more detailed account of the relevant events in
      its memorandum denying pretrial diversion. According to the State, the
      circumstances of the offense are as follows:

                    Officers with the Tullahoma Police Department began
             receiving information and complaints about the Defendant
             and her friend (codefendant Kelley Renee Eaves) in late 2005
             and early 2006. The complaints were in reference to the
             Defendant and Eaves hosting parties for high school students
             in the Eaves‟ home at 421 Albermarle Drive in Tullahoma.
             Several parents and students reported that defendants Eaves
             and Stephens allowed numerous boys into the home to
             consume alcohol and smoke cigarettes. Also, the defendants
                                          -2-
would consume alcohol, dance and act inappropriately with
the boys. Complaints also came in that the women would
drive around town in the Defendant‟s vehicle with their
daughters and act inappropriately with the high school boys.

        Upon investigation, Officer Joe Brown with the
Tullahoma Police Department found that the defendants each
had a 14 year-old daughter that was allowed to date a 17 year-
old boy. Apparently the boys were then encouraged to come
to the Eaves house and invite their friends to join the
festivities. During these parties, the Defendant and Eaves
would allow the high school boys to drink beer and smoke
cigarettes. Although they deny giving beer to the boys,
witnesses report that it was freely available and further, both
defendants admit they knew the boys were drinking.

       On or about February 18, 2006, during one of these
“parties,” the Defendant, Susan Stephens began her pursuit of
the minor victim in this case . . . by kissing and fondling him.
[The victim], a 17 year-old high school student would attend
the parties and become intoxicated. He and the Defendant
would speak on the phone, exchange text messages and see
each other at the parties.

       On February 24, 2006, the Defendant again met [the
victim] at the Eaves home in Tullahoma. Again, [the victim]
had been drinking and the Defendant made sexual advances
toward him[.]

       It should be pointed out that the [sic] both defendants‟
14 year-old daughters were present during these parties with
their respective 17 year-old boyfriends. Their boyfriends
were also allowed to consume alcohol although both
defendants deny their daughters consumed any themselves.

       On February 25, 2006, the Defendant and Eaves
hosted another “party.” Witnesses report that [the victim]
along with several other boys were intoxicated both inside
and outside the residence. During this time, [the victim] and
the other boys were yelling in the driveway and being loud.
Sometime after this the Defendant and Eaves got into the
Defendant‟s vehicle, which was parked in the driveway,
                             -3-
along with [the victim] and another high school boy . . . .
Defendant was talking to [the victim] because he was drunk
and about to fight another boy. Reportedly, while this
conversation was taking place, codefendant Eaves was
engaged in kissing and petting with the minor . . . in the
backseat. [The victim] then exited the vehicle followed by
the Defendant. Later in the evening the victim . . . describes
the following events:

              Everyone went inside. Me and [the
      Defendant] were in the garage. She was
      smoking a cigarette and I was drinking a beer. I
      turned on a Terry Clark song and we were
      dancing. [The Defendant] then pulled me over
      to the couch and said “come here.” She was
      sitting on my lap. [The Defendant] then started
      kissing me and I kissed her back. She fell back
      on the couch and pulled me on top of her. I
      unbuttoned her pants, she unbuttoned my pants.
      She pulled down my pants to my knees and then
      she pulled her pants off. She said, “Do you
      really want to do this?” I said, “It‟s up to you.”
      I said “Do I need to go get a condom?” She
      said “Yes.” I ran out to my truck and got a
      condom. When I returned she jerked me back
      on the couch and asked “Do I need to put it on
      for you?” I said “No, I got it.” Then we started
      making out and then I penetrated her.

        The Defendant and the victim were then interrupted by
the codefendant, Eaves, who laughed and went back into the
house. As the evening went on, [the victim] was allowed to
sleep in the Eaves‟ bonus room along with two other boys
because they were still drunk. The Defendant chose to sleep
in the bonus room with them. After she mistakenly believed
everyone was asleep, the Defendant went to the recliner
where [the victim] was sleeping, unbuttoned his pants, and
had sex with him. Defendant‟s 14 year-old daughter was also
in the house as well with her 17 year-old boyfriend.



                            -4-
State v. Susan Gail Stephens, No. M2008-00998-CCA-R9-CO, 2009 WL 1765774, at *1-
2 (Tenn. Crim. App. June 23, 2009) (alterations in original). The Defendant was charged
with two counts of statutory rape and two counts of contributing to the delinquency of a
minor. Id. at *3. The Defendant applied for and was denied pretrial diversion.

      In the Defendant‟s first appeal, this court found that the prosecutor failed to
consider the Defendant‟s amenability to correction. Id. at *5. Consequently, the case
was remanded to the prosecutor for reconsideration. Id.

        After the case was remanded, the Defendant submitted additional information to
the prosecutor to support her application for pretrial diversion. The additional
information detailed her work history since the filing of the original application, updated
the prosecutor about her daughters‟ progress in school, informed the prosecutor that the
Defendant was going through a divorce, and described how media coverage of the case
had affected her daily life. Additionally, the Defendant noted that she had not been
charged with any other crime since the filing of her original application. The Defendant
also stated, “To say I regret my actions would be a huge understatement. I realize how
many people I have hurt and changed lives forever. I am hugely remorseful and very
sorry for all the pain I have caused everyone involved.” The prosecutor again denied
pretrial diversion. In his written denial, the prosecutor claimed, “[T]he State is under no
obligation to permit the Defendant to file a new application or to consider any other
factors than those originally filed and considered by the Circuit Court and Court of
Criminal Appeals.”

       On appeal from this second denial, this court again remanded the case for
reconsideration. State v. Susan Gail Stephens, No. M2010-01373-CCA-R9-CD, 2012
WL 340247, at *7 (Tenn. Crim. App. Jan. 31, 2012). We held that the prosecutor should
have considered the Defendant‟s updated information because such “surely would have
reflected upon the likelihood that the Defendant would or would not become a repeat
offender.” Id. at *5.

       Again, the Defendant submitted updated information to support the third
consideration of her application for pretrial diversion. This information included an
updated work history, an explanation as to how the Defendant was coping as a single
mother following her divorce, and details about her daughters‟ success as honors students
in their respective schools. Additionally, the Defendant gave an account of how her
charges were affecting her daily life, including the following statement:

            I am ashamed of my behavior and will always be. I am greatly
      saddened by how it has affected all those involved, the victim, my family,
      and my friends.

                                           -5-
              Since February 2006 I have been a fully law-abiding citizen, with
       not even a traffic ticket. I continue to regret the pain I have caused others
       due to my actions in February 2006.

       The prosecutor again denied the Defendant‟s application for pretrial diversion. He
claimed that, although he erroneously stated he was not obligated to do so, he had
considered the updated information submitted before denying the Defendant‟s application
the second time. To clarify the record for the instant appeal, the prosecutor explicitly
stated that he was considering all of the information the Defendant had submitted to
support her original application.

       The prosecutor noted that, aside from the instant offenses, the Defendant had no
criminal record. Additionally, the prosecutor concluded that the Defendant had a
favorable social history, including participation in numerous church activities and extra-
curricular functions with her daughters. The prosecutor noted that the Defendant‟s
physical and mental health were not relevant to the proceeding. As to the Defendant‟s
amenability to correction, the prosecutor expressed concern that the Defendant
“appear[ed] to describe the events in a light most favorable to her own cause,” a practice
the prosecutor had seen from “countless child sexual offenders.” Additionally, the
prosecutor noted that, while the Defendant had sought counseling after the charged
offenses, she stopped counseling shortly after her application for pretrial diversion was
filed due to “insurance issues.” The prosecutor commented that “the dates certainly raise
suspicions as to her motives.” Nevertheless, the prosecutor concluded that the Defendant
was “moderately amenable to correction.” Despite this conclusion, however, the
prosecutor did not believe the Defendant was a suitable candidate for pretrial diversion
because “she ha[d] expressed much more remorse over the consequences to herself and
her family than the effects to the victim, his family, the other children present, or to the
community.”

       Turning to specific and general deterrence, the prosecutor described the Defendant
as a “predator” who pursued the victim over the course of several encounters. Looking at
specific deterrence, the prosecutor again commented he could not determine whether the
Defendant was remorseful for her actions or for being caught. As to general deterrence,
the prosecutor cited the television show Desperate Housewives to illustrate a need to
deter middle-aged defendants from taking advantage of teenage victims. Additionally,
the prosecutor stated that the community trusted adults to ensure the safety of children.
The prosecutor concluded that the Defendant‟s actions were a breach of that trust, as
evidenced by “the flood of communication to [the district attorney general‟s] office from
members of the general public.” Therefore, granting pretrial diversion would lessen the
seriousness of the offense and “do nothing to deter others from committing the same or
similar offenses[.]”

                                           -6-
       Finally, the prosecutor concluded that pretrial diversion would not serve the ends
of justice or the best interests of the public or the Defendant. Instead, the prosecutor
concluded that granting pretrial diversion would “unquestionably make a mockery of the
ends of justice while at the same time place the public and more specifically, our
children, at a higher risk.”

        The Defendant petitioned the trial court for a writ of certiorari. Upon review, the
trial court found that the prosecutor had considered all the relevant factors and did not
abuse his discretion in denying pretrial diversion. The Defendant requested and was
granted permission to file this interlocutory appeal.

                                               Analysis

        In this appeal, the Defendant argues that the prosecutor abused his discretion in
denying pretrial diversion. She asks this court to reverse the trial court‟s order affirming
the denial of pretrial diversion and remand the case with instructions that diversion be
granted. Additionally, the Defendant asks this court to direct the prosecutor to grant
pretrial diversion nunc pro tunc to the date of her 2012 application as an equitable
remedy. We agree that the prosecutor abused his discretion in denying pretrial diversion
and remand the case with instructions that the Defendant be placed on pretrial diversion.
However, we decline to instruct the prosecutor to grant pretrial diversion nunc pro tunc to
2012.

        The pretrial diversion statute allows a qualified defendant to enter into a
memorandum of understanding with the State to suspend prosecution for up to two years.
Tenn. Code Ann. § 40-15-105(a)(1)(A) (2006). A qualified defendant is one who has not
been previously granted diversion and who does not have a disqualifying prior
conviction. See Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(b) (2006). Additionally,
the offense for which pretrial diversion was sought cannot be a Class A or B felony, an
enumerated Class C felony, an enumerated sexual offense,1 driving under the influence,
or vehicular assault. Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(c) (2006). If granted
pretrial diversion, the defendant is required to observe at least one condition in order to
successfully complete diversion. Tenn. Code Ann. § 40-15-105(a)(2) (2006).

       Statutory eligibility for pretrial diversion does not entitle a defendant to diversion.
State v. McKim, 215 S.W.3d 781, 786 (Tenn. 2007) (citing State v. Curry, 988 S.W.2d
153, 157 (Tenn. 1999)). The decision of whether to grant pretrial diversion lies within
the prosecutor‟s discretion. State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002). In deciding

        1
           Because statutory rape was not an enumerated sexual offense under Tennessee Code Annotated
section 40-15-105(a)(1)(B)(ii) at the time of the offense, the Defendant was not disqualified from seeking
pretrial diversion.
                                                  -7-
whether to grant pretrial diversion, the prosecutor “should focus on the defendant‟s
amenability to correction.” Id. Consequently, “[a]ny factors which tend to accurately
reflect whether a particular defendant will or will not become a repeat offender should be
considered.” State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). Such factors
include the circumstances of the offense, the defendant‟s criminal record, social history,
physical and mental condition, the need for general and specific deterrence, and the
likelihood that pretrial diversion will serve the ends of justice and the best interests of
both the public and the defendant. Id. at 354-55; see also State v. Richardson, 357
S.W.3d 620, 626 (Tenn. 2012); McKim, 215 S.W.3d at 786-87. However, the
circumstances of the offense and the need for deterrence “cannot be given controlling
weight unless they are „of such overwhelming significance that they [necessarily]
outweigh all other factors.‟” McKim, 215 S.W.3d at 787 (emphasis and alterations in
original) (quoting State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)). “Absent
such exceptional circumstances, the prosecutor must consider the defendant‟s amenability
to correction and the likelihood that the defendant will not commit further crimes.” State
v. Russell L. Tipton, No. M2006-00260-CCA-R9-CO, 2007 WL 2295610, at *6 (Tenn.
Crim. App. Aug. 9, 2007).

        A prosecutor‟s denial of pretrial diversion must be in writing and enumerate all the
relevant factors considered as well as the weight accorded to each. Richardson, 357
S.W.3d at 626. The defendant may appeal the prosecutor‟s decision by petitioning the
trial court for a writ of certiorari. Id. at 626-27. The district attorney general‟s decision
is presumed to be correct, Curry, 988 S.W.2d at 158, and the trial court must determine
whether the prosecutor abused his or her discretion by examining only the evidence
considered by the prosecutor. Bell, 69 S.W.3d at 177. The trial court may not reweigh
the evidence but can only look to the district attorney general‟s methodology. State v.
Yancey, 69 S.W.3d 553, 558-59 (Tenn. 2002). The appellate court‟s review is confined
to a determination of whether the trial court‟s decision was supported by a preponderance
of the evidence. Richardson, 357 S.W.3d at 627 (citing Curry, 988 S.W.2d at 158 and
State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997)).

        “A reviewing court may find that the district attorney general abused his or her
discretion in one of two ways: either by failing to consider or articulate all the relevant
factors or considering and relying upon an irrelevant factor, or (2) by making a decision
that is not supported by substantial evidence.” Richardson, 357 S.W.3d at 627 (citing
McKim, 215 S.W.3d at 788-89; Bell, 69 S.W.3d at 179; Curry, 988 S.W.2d at 158).

       Should the district attorney general fail to consider all the relevant factors or give
undue consideration to an irrelevant factor, the reviewing court must vacate the district
attorney general‟s decision and remand the case to allow the district attorney general to
reconsider and weigh all the relevant factors. Id. However, if the reviewing court

                                            -8-
determines that the district attorney general properly weighed all the relevant factors and
did not give undue consideration to any irrelevant factors, but the denial of pretrial
diversion is not supported by substantial evidence in the record, “the reviewing court may
order the defendant to be placed on pretrial diversion rather than remand the case to the
district attorney general.” Id. (citing McKim, 215 S.W.3d at 788 n.3); see also Tenn.
Code Ann. § 40-15-105(b)(3) (2006).

       In this case, it is evident that the prosecutor considered and weighed all the
relevant factors. However, we do not believe the decision to deny pretrial diversion is
supported by substantial evidence in the record. The prosecutor identified the need for
deterrence and the ends of justice as factors weighing against granting pretrial diversion.
Additionally, even though the prosecutor concluded that the Defendant was “moderately
amenable to correction,” he did not believe this factor weighed in favor of granting
diversion because the Defendant had not expressed sufficient remorse for her actions.

       As this court has previously held, the prosecutor may not require the Defendant to
admit guilt before granting pretrial diversion. See Russell L. Tipton, 2007 WL 2295610,
at *5 (citing State v. Thompson, 189 S.W.3d 260, 268 (Tenn. Crim. App. 2005)). To do
so constitutes an abuse of discretion. Id. Therefore, we conclude that the prosecutor
abused his discretion when he concluded that the Defendant‟s amenability to correction
weighed against granting pretrial diversion because she had not demonstrated sufficient
remorse for her actions. Consequently, the record does not contain substantial evidence
to deny pretrial diversion on the basis that the Defendant is not amenable to correction.

       Likewise, the record does not contain substantial evidence to support the
conclusion that the ends of justice and best interests of the Defendant and the public favor
denying pretrial diversion. In regard to this factor, the prosecutor simply stated,
“[P]retrial diversion in this case would unquestionably make a mockery of the ends of
justice while at the same time place the public and more specifically, our children, at a
higher risk.” The prosecutor does not point to, nor can we find, any evidence in the
record to support this conclusion.

       The only remaining factor the prosecutor cited as weighing against pretrial
diversion is the need for specific and general deterrence. As noted above, the
circumstances of the offense and need for deterrence “cannot be given controlling weight
unless they are „of such overwhelming significance that they [necessarily] outweigh all
other factors.‟” McKim, 215 S.W.3d at 787 (emphasis and alterations in original)
(quoting Washington, 866 S.W.2d at 951). We do not believe there is substantial
evidence in the record to show that the need for deterrence in this case is so exceptional
as to outweigh all other factors to be considered when determining whether the
Defendant should be granted pretrial diversion. This is especially true when the record
clearly indicates that the Defendant has not been arrested for or charged with any other
                                          -9-
crime since the instant offenses. Because there is no substantial evidence in the record to
support the prosecutor‟s decision to deny pretrial diversion, we reverse the order of the
trial court and remand this case with an instruction that pretrial diversion be granted.

        However, we decline to instruct the prosecutor to grant pretrial diversion nunc pro
tunc to the Defendant‟s 2012 update to her application. A judgment may be ordered nunc
pro tunc when the judgment is pronounced but not entered. Thomas v. State, 337 S.W.2d
1, 4 (Tenn. 1960). The nunc pro tunc order allows the order to be entered as of the date
of its pronouncement. Id. However, our supreme court has stated that,

       The general rule is that to justify a nunc pro tunc order there must exist
       some memorandum or notation found among the papers or books of the
       presiding judge, and a nunc pro tunc order will not be valid unless there is
       some such memorandum showing what judgment or order was actually
       made and these facts recited.

Id.

        This is not a case where the Defendant was granted pretrial diversion but, through
some error, that fact was never recorded. Instead, the prosecutor has consistently denied
pretrial diversion. Accordingly, a nunc pro tunc order is not appropriate in this case.

       Additionally, although the Defendant asserts that she has been under “court
supervision” during the pendency of these charges, there is nothing in the record
indicating that she had been required to comply with any of the conditions listed in
Tennessee Code Annotated section 40-15-105(a)(2). Successful completion of pretrial
diversion requires that the Defendant comply with one or more conditions as agreed upon
by the parties. Tenn. Code Ann. Section 40-15-105(a)(2) (2006). Because she has not
been required to comply with any of these restrictions, the Defendant has not yet
successfully completed pretrial diversion. Therefore, contrary to the Defendant‟s
assertions, equity does not require granting pretrial diversion nunc pro tunc to 2012.

                                       Conclusion

        For the aforementioned reasons, the judgment of the trial court is reversed. The
case is remanded to the trial court with instructions to order the prosecutor to grant
pretrial diversion under such terms and conditions as are deemed appropriate by the trial
court.



                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE
                                          - 10 -
