        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                              MAY SESSION, 1999             July 30, 1999

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9804-CR-00159
                                )
      Appe llant,               )
                                )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON . SETH N ORM AN
JOSEPHINE SKIDMORE,             )    JUDGE
                                )
      Appellee.                 )    (Pretrial Diversion)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN KNOX WALKUP                     CHARLES R. RAY
Attorney General and Reporter        JEFFERY S. FRENSLEY
                                     211 T hird Aven ue No rth
DARYL J. BRAND                       P. O. Box 198288
Associate Solicitor General          Nashville, TN 37219-8288
425 Fifth Avenu e North
Nashville, TN 37243

VICTOR S. JOHNSON
District Attorney General

KATRIN MILLER
Assistant District Attorney
222 Se cond A venue N orth
Nashville, TN 37201-1649



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                     OPINION


       The appellee, Jose phine S kidmo re, was ind icted by the Sum ner Co unty

grand jury with one (1) count of forgery and one (1) count of making, presenting

or using a false document with the intent that it be taken as a genuine

governmental record. She applied for pretrial diversion, which was denied by the

district attorney. Skidmore subsequently filed a petition for writ of certiorari with

the trial court to review the district attorney’s denial of pretrial diversion. The trial

court found that the assistant district attorney abused her discretion and placed

the appellee on pretrial diversion for a period of one (1) year, which would run

retroa ctively from the date of the indictment. The state appeals, claiming that the

trial court erred in (1) reversing the district attorney’s decision to deny pretrial

diversion, and (2) ordering a retroac tive diversionary period. After a thorough

review of the record before this Court, we conclude that the trial cou rt erred in

finding that the district attorney abused her discretion and, accordingly, reverse

the judgm ent of the tria l court.



                                           I.




       The appellee is an alderman for the City of Hendersonville, as well as a

Sumner County commissioner. In June 1996, Karen Martin obtained a petition

from the appe llee in support of Ray Rollins to be appointed to a vacant seat on

the county co mm ission. Skidmore prepared the petition by photocopying seven

(7) pages from an earlier petition which opposed a zoning change. She then

changed the heading of the petition to support Rollins as county com missioner.



                                           -2-
Initials were added in the margins alongside severa l name s, accord ing to

Skidmore, to indic ate tho se ind ividuals who a ssen ted to u se the ir nam es in

support of Rollins’ n omina tion.    Martin p resente d this petition to the cou nty

commission on June 17.

       Subseq uently, District Attorney General Lawrence Ray Whitley requested

that the Tennessee Bureau of Investigation conduct an investigation into the

matter. TBI Agent Richard Stout conta cted m any of th e individ uals listed on the

Rollins petition to verify whether these individuals agreed to support Rollins in the

petition. Nearly all of the individuals contacted denied signing or initialing the

Rollins petition and could not recall being contacted in regards to the Rollins

petition.

       General Whitley recused himself and his office from the matter, and Victor

S. Johnson, III was appointed as special prosecutor in this case. The Sumner

Coun ty grand jury indicted the appellee with one (1) count of forgery and one (1)

count of making, presenting, or using a false document with the intent that it be

taken as a genuine governmental record. The appellee subsequently applied for

pretrial diversion.

       At the time of her application, the appellee was sixty-seven (67) ye ars old

with no prior criminal record. She is a widow and has two (2) living children. She

worked in her daughter’s law office and has held positions as an alderman for the

city of Hende rsonville and a Su mner County commissioner. In support of her

application, the appellee submitted approximately fifty (50) letters from neighbors,

colleagues and friends attesting to her good moral character and active

comm unity involvem ent.

       The appellee also intim ated tha t her pros ecution w as initiated a s part of a

“political vendetta” against her. In support of this position, defense counsel

                                          -3-
subs eque ntly submitted a letter which detailed other instances of falsification of

governmental documents which were not prosecuted by the District Atto rney’s

Office for th e Eighte enth Ju dicial District.

       In her letter de nying pre trial diversion , Assistan t District Attorn ey Ka trin

Novak Miller recognized the factors favorable to the appellee, including her lack

of a criminal record. Miller stated, “Ms. Skidm ore appea rs to be a n em otiona lly

stable and responsible individual. She has no history of substance abuse. She

is a responsible and respected member of her community. The likelihood of her

ever becom ing involved in a crim inal matter aga in seems unlikely.”

       Howeve r, Gene ral Miller den ied diversio n base d upon : (1) the

circumstances of the offense; (2) the deterrent effect of punishment on other

crim inal activity; and (3) the likelihood that pretrial diversion will serve the best

interests of the public and the appellee. Miller determined that the reasons fo r

denying diversion “far outweigh[ed]” the relevant factors in the appellee’s favor.

Specifically, she stated:

       This office finds that her actions in altering and causing a fraudulent
       document to be sub mitted to a public office und ermin es the public
       confidence in the governmental process. Petitions supporting
       whatever view submitted to whatever body are the public speaking
       in its purest form next to the actu al live voice. If the integrity of a
       public petition is not maintained, what assurance do any citizens
       have in the future of know ing if a signa ture they w illingly give to
       support one cause won’t be used to espouse another cause? What
       Ms. Skidmore did was to man ufactu re a pe tition wh ich false ly
       indicated a public position. Because she is an elected official, she
       is in a position of leadership and trust. As she is an example of
       good works in her comm unity, she must also be an example of the
       consequences of misco nduct. In reviewing cases of pre-trial
       diversion denial, the appellate courts have re peate dly held that the
       deterrent effect of punishment upon other criminal a ctivity is a factor
       which the district attorne y should conside r, . . . Cases in which fraud
       is involved, including forgery cases, seem to compose such a
       category of offens e whic h by the ir very na ture, ne ed no extrinsic
       proof to e stablish the deterren t value of pu nishm ent.




                                            -4-
Miller noted that even though the appellee admitted altering the petition , “she d id

not seem to appreciate the wrongfulness of her actions.” In addition, Miller

rejected the appellee’s allegations that the prosecution was politically motivated

in light of the fact that the Davidson County District Attorney’s Office, rather than

the local d istrict attorney , decided to subm it the matte r to the gra nd jury.

        The appellee filed a petition for writ of certiorari to the trial court 1 to review

the district attorney’s denial of pretrial diversion. At the hearing, Assistant District

Attorney Miller testified as to her reasons for denying diversion. When defense

counsel intimated that ADA Miller was influen ced b y the M ayor o f Hen derso nville

in her decision to deny diversion, the trial court interjected, “I will tell you, the

Court knows Gene ral Miller [well] en ough to know th at nobo dy is going to

influence her decision. I full well understand General Miller. Both as judge and

as a former trial lawyer, I know how General Miler is about her opinion in

matters.”

        The trial court took the matter under advisement, but subsequently

released an op inion e xpres sing its c once rn that th e pros ecutio n was politically

motivated. The trial court further stated that it was “aware of the requirements”

of State v. Hammersley, 650 S .W .2d 35 2 (Te nn. 19 83), “h owev er the C ourt is

concerned that a c rimina l prose cution might have been motivated by local

politics.   This th e Cou rt cann ot allow .           This C ourt be lieves th at this is an

approp riate case for diversion.” In a subsequent order, the trial court found that

the prosecutor had abused her discretion in denying diversion and, therefore,

ruled that the appellee be placed on d iversion for a period of one (1) year. The

trial court further determined that “[d]ue to [the appellant’s] cooperation with law


        1
         All judges from the Eighteenth Judicial District recused themselves from the matter. The
Honorable Seth Norman, Criminal Court Judge, Division Four, for the Twentieth Judicial District was
appointed to hear the matter by interchange.

                                                 -5-
enforcement and her conduct during the pendency of this matter, . . . the

diversionary period sh all be retroa ctive to the filing of the indictm ent,”

appro ximate ly one (1) ye ar prior to the filing of the ord er. The refore, the trial

court ordered that the prosecution against the appellee be dismissed, contingent

upon h er paym ent of cou rt costs.

      From the trial c ourt’s o rder, th e State of Ten ness ee brin gs this appe al.



                                          II.




      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

avoid future criminal charges. Tenn. Code Ann. § 4 0-15-10 5. Pretrial diversion

is extraordin ary relief for wh ich the de fendan t bears the burden of proof. State

v. Baxter, 868 S.W .2d 679, 681 (Tenn. Crim . App. 1993 ).

      The decision to grant pr etrial diversio n rests w ithin the discretion of the

district attorney. T enn. C ode An n. § 40-1 5-105(b )(3); see State v. Curry, 988

S.W.2d 153, 157 (Tenn. 1999). In exercising that discretion, the Tennessee

Supre me C ourt has offered this guidan ce:

             When deciding whether to enter into a memorandum of
      understanding under the pretrial diversion statute a prosecutor
      shou ld 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
      conside red. . . . Among the factors to be con sidered in addition to
      the circumstances of the offense are the defendant’s criminal
      record, social history, the physica l and m ental con dition of a
      defendant where appropriate, and the likelihood that pretrial
      diversion will serve the ends of justice and the best interest of both
      the pub lic and the defend ant.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, “the focus

on amena bility to correction is not an exclus ive one.” State v. Carr, 861 S.W.2d

                                         -6-
850, 855 (Ten n. Crim. App . 1993). Deterre nce of the defe ndant and others is

also a prope r factor to co nsider. Hammersley, 650 S.W.2d at 354. In fact, the

circumstances of the crime and the need for deterrence may outweigh other

applic able factors and justify the denial of pretrial diversion. State v. Lutry, 938

S.W .2d 431, 434 (Tenn. Crim . App. 1996 ).

      When deciding whether to grant pretrial diversion, the district attorney

shou ld consider the following factors: (1) the circumstances of the offense; (2) the

defend ant’s criminal record, social history, and present condition, including

mental and physical conditions if appropriate; (3) the deterrent effect of

punishment on othe r criminal a ctivity; (4) the de fendan t’s amen ability to

correction; and (5 ) the like lihood that pre trial diver sion w ill serve the ends of

justice and the best interests o f both the p ublic and the defen dant. State v.

Washington, 866 S.W .2d 950, 951 (Tenn. 199 3).

      When denying an application for pretrial diversion, the District Attorney

must clearly articulate the specific rea sons for d enial in the record in o rder to

provide for mea ningful ap pellate revie w. State v. Hammersley, 650 S.W.2d at

355. As stated by the T ennes see Su preme Court, the requirement that the

district attorney consider all relevant factors:

      entails more than an abstract state ment in the rec ord that the district
      attorney g eneral h as con sidered these fac tors. He must a rticulate
      why he believes a defendant in a particular case does not meet the
      test. If the attorney general base s his de cision on les s than the full
      complement of factors enumerated in this opinion he must, for the
      record, state why he considers that those he relies on outweigh the
      other submitted for his consideration.

State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). T he failure o f the record to

reflect that the District Attorney considered all of the applica ble fac tors wo uld

allow a review ing court to find an abuse of discretion . See State v. Carr, 861

S.W.2d at 858.

                                         -7-
       The district a ttorney ’s decis ion to g rant or deny p retrial div ersion is

presu mptive ly correc t and s hall be revers ed on ly when the appellant establishes

that there has been an abuse of prosecutorial discretion. State v. Curry, 988

S.W.2d at 158. In order to establish such an abuse of discretion, the record must

show an absence of any substantial evidence to support the district attorney’s

refusal to grant pr etrial diversio n. Id. Therefore , in a close case where the

District Attorney could have legitimately granted or denied the application, the

trial judge must defer to the judgment of the District A ttorney. State v. Carr, 861

S.W.2d at 856.

       On appellate review of the judgment of the trial court in diversion cases the

trial court’s findings of fact are binding on an appellate court unless the evidence

preponderates against th ose findin gs.          State v. Lutry, 938 S.W.2d at 434.

Therefore, we review to determine whether the trial court’s decision is supported

by a prepo nderan ce of the e vidence . State v. Curry, 988 S.W .2d at 158 ; State

v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). When reviewing a denial of

pretrial diversion, this Court may no t substitute its judgment for that of the district

attorney’s even if we would have preferred a different res ult. State v. Houston,

900 S.W .2d 712, 714 (Tenn. Crim . App. 1995 ).



                                          III.




       In her letter denying dive rsion, the assistant d istrict attorney recogn ized

that the ap pellee was “a n em otiona lly stable and re spon sible ind ividual. She has

no history of sub stanc e abu se. Sh e is a re spon sible and respected member of

her community. The likelihoo d of he r ever b ecom ing invo lved in a criminal matter

again seems unlikely.” However, the assistant district attorney determined that

                                          -8-
pretrial diversion should be de nied based upon (1) the circumstances of the

offense, (2) the deterrent effect of punishment on other criminal activity, and (3)

the likelihood that pretrial diversion w ill serve the best interests of the public and

the appellee. Miller determined that the reasons for denying diversion “far

outweig h[ed]” the relevant factors in the appellee’s favor. She expressed concern

over the fact that the appellee is a public official, and he r actions s erved to

“unde rmine [] the pu blic con fidenc e in the governmental process.” Further, the

assistant district attorney found tha t because this c ase involved fraud, the

deterrent effect of punishment upon other criminal activity was a significant factor

weighing against pretrial diversion. M oreover, she o bserved that even though the

appellee admitted altering the petition, “she did not seem to appreciate the

wrongfu lness of h er actions .”

        In its written opinion and subsequent order, the trial court found that the

assistant district attorney abuse d her disc retion in de nying pre trial diversion . The

trial court based its decision solely on its determin ation that the subject

prosecution “might have been motivated by local politics.” We believe that the

evidence in the record preponderates against the trial court’s findings.

        First, even if th e reco rd fully su pporte d the a ppelle e’s alleg ations that

District Attorn ey Ge neral L awren ce Ra y W hitley was “politica lly motiv ated” in

initiating the investigation and subsequ ent charges against the appellee,2 the

subjective motiva tions o f the pro secu tion are irreleva nt if, in fact, there is

proba ble cause to believe that the appellee committed the criminal acts as

charge d.



        2
          This Cou rt doe s not find th at su ch alle gatio ns w ere e stab lished in this r eco rd. T he on ly
“evidence” that this prosecution was politically motivated consists of a letter submitted by defense counsel
alleging various instances of unprosecuted fraudulent conduct committed by other individuals within the
Eighteen th Judicial D istrict.

                                                    -9-
       Second ly, once the TBI had concluded its investigation into these matters,

the entire case was transferred to the Davidson County District Attorney’s Office

who decided to su bmit the case to the Sum ner Coun ty grand jury. The g rand jury

then returned an indictment charging the appellee with one (1) coun t of forgery

and one (1) count of making, presenting or using a false document with the intent

that it be taken as a genuine governmental record.

       Finally and, m ost im portan tly, there is no evid ence in the record to su pport

the allegation that the de cision to deny p retrial div ersion was p olitically motivated.

During his exam ination of A ssistant District Attorney Miller, defense counsel

questioned her about phone calls she had received from the Mayor of

Hen derso nville in connection with this matter. W hen d efens e cou nsel im plied

that Miller m ight ha ve bee n influe nced by the m ayor in her decision to deny

diversion, the trial court interjected, “I will tell you, the Court knows General Miller

[well] enough to know that n obod y is goin g to influ ence her de cision . I full well

understand General Miller. Both as judge and as a former trial lawyer, I know

how Gen eral M iler is ab out he r opinio n in matters.” Thus, the trial court made a

spec ific finding of fact tha t the de cision to den y divers ion wa s not p olitically

motivated.

       Allegations of prosecutorial vindictiveness or selective prosecution in the

institution of a prosecution, have constitutional implications that, if proven, may

warrant dismiss al of the ind ictmen t. See Blackledge v. Perry, 417 U.S. 21, 27,

94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (due p roces s ma y be im plicate d if

a prosecutor vind ictively increases a cha rge to a felony after a misdemeanant has

invoked an app ellate rem edy); Wa yte v. United States, 470 U.S. 598, 608, 105

S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (equal protection standards prevent

selective prose cution on the basis o f race, re ligion, or other arbitrary

                                          -10-
classification).   However, as long as the prosecutor has probable cause to

believe that an accuse d com mitted an offense, th e determ ination wh ether to

prosecu te rests entirely within the prosecutor’s discretion, subject to these

constitutional limitations. State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.

1994); Quillen v. C rockett, 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5).

       In any event, the trial court’s review under Tenn. Code Ann. § 40-15-

105(b)(3) is limited to the question of abuse of discretion concerning the pretrial

diversion decision, not subjective motives concerning the institution of the

prosecution. The trial court must find an abuse of discretion with regard to the

denial of diversion. On th is poin t the trial court specifically found that political

motivations played no part in Assistant District Attorney Miller’s decision to deny

diversion.

       The trial court found that this case was “an appropriate case for diversion”

and g ranted diversio n on th is basis . The tr ial cou rt is not at liberty to s ubstitute

its own judgment for that of the district attorney in its review for an abuse of

discretion. See State v. Houston, 900 S.W .2d at 714 . In this case, the assistant

district attorney outlined her reasons for denying diversion in a detailed, four (4)

page letter. She recognized the appellee’s lack of criminal record , her fav orable

social and work history and her amenability to rehabilitation. However, she

determined that the un favora ble factors outweigh ed the favorab le ones and gave

a detailed explana tion as to why the u nfavorable factors were given m ore weig ht.

See State v. Curry, 988 S.W.2d at 158.

       Although we believe the question of the ap pellan t’s suitability for diversion

is a close c all, we con clude tha t the trial court s hould have deferred to the

discretion of the prosecutor in her refusa l to divert. As sta ted by th is Cou rt in

State v. Carr,

                                           -11-
        It is not the trial court’s function to disapprove the denial whenever
        it disagrees with the prosecutor. It is obligated to defe r to the
        prose cutor’s discretion when the record contains any substantial
        evidence to support the decision. Thus, if the record would s upport
        either a grant or a den ial of pretrial diversion, the trial court must
        defer to the prosecutor’s discretionary decision. As our Supreme
        Court has previously stated regarding a discretionary decision in
        another conte xt, if “the evidence would support either conclusion .
        . . it cannot be an abuse of discretion to decide the case either wa y.”


861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286 (Tenn. 197 8)).




                                                   IV.




        The evidence in the record preponderates against the trial court’s findings

that the district attorney abused her discretion in denying pretrial diversion.3

According ly, the judgment of the trial court is reversed, and the case is remanded

for further proceedings consistent with this opinion.



                                          ____________________________________
                                          JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




        3
          Because this Court m ust reverse the trial court’s decision, the issue regarding the propriety of a
retroactive diversionary period is pretermitted.

                                                  -12-
