         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 22, 2009 Session

          STATE OF TENNESSEE v. MICHAEL EUGENE CHITTUM

                    Appeal from the Criminal Court for Trousdale County
                      No. 07-69-D-298    John D. Wootten, Jr., Judge



                      No. M2008-02106-CCA-R9-CO - Filed May 27, 2009


The Defendant, Michael Eugene Chittum, was charged with one count of reckless vehicular
homicide, a Class C felony. His application for pretrial diversion was denied by the district attorney
general and that denial was upheld by the Criminal Court of Trousdale County. In this appeal, the
Defendant argues that the trial court erred in upholding his denial of pretrial diversion because the
district attorney general considered an irrelevant factor in his denial memorandum. On appeal, the
State concedes that the district attorney general impermissibly considered an irrelevant factor and
asks us to remand this case to the district attorney general for reconsideration. The Defendant, in
response, asks us to reverse the decision of the trial court and remand to the trial court for entry of
an order granting him pretrial diversion. After our review, we reverse, remand, and direct the entry
of an order granting the Defendant pretrial diversion.


   Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Reversed;
                                       Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Vincent P. Wyatt, Nashville, Tennessee, for the appellant, Michael Eugene Chittum.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General;
Tom P. Thompson, District Attorney General; and Jason Lawson, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                              Factual and Procedural Background
       As outlined by the district attorney general in his denial of pretrial diversion, the facts
underlying this case are as follows:
                On the evening of Easter Sunday, April 8th, 2007, the Defendant . . . had just
       finished visiting a friend in Trousdale County and was traveling down Highway 231
       towards Lebanon on his way to his home in Hermitage. He approached the four-way
       stop at the intersection of Highway 25 and Highway 231, and waited while a tractor-
       trailer truck, who had arrived at the stop sign first, turned left from Highway 25 onto
       Highway 231, traveling in the same direction as the Defendant. The Defendant then
       proceeded straight through the intersection and began following the truck. The truck
       was traveling at about 40 to 50 miles per hour. According to the Defendant, he
       wanted to pass the truck. He could not pass the truck at the first passing zone
       because of oncoming vehicles. At the second [] passing zone, another oncoming
       vehicle obstructed his path. Then, according to another motorist following the
       Defendant, just as the second [] passing zone had concluded, the Defendant
       attempted to overtake the semi-truck in the no passing zone. According to the
       motorist, the Defendant began his pass in the no passing zone as he was approaching
       a small hill. At the rise of the hill, the Defendant says that he was only halfway
       through the pass of the semi-truck when another vehicle topped the hill and the
       Defendant’s vehicle struck the other vehicle head on. The other vehicle was driven
       by the victim, Gerald Miller. Mr. Miller was killed as a result of the crash. Also in
       Mr. Miller’s vehicle was his wife and their small granddaughter. Both of these
       passengers received minor injuries. Mr. Miller and his wife had spent the day
       celebrating the Easter holiday with family and [were] returning home at the time of
       the crash. According to the Crash Re-Constructionalist with the Tennessee Highway
       Patrol, the Defendant traveled in the no passing zone for a distance of seven hundred
       and twenty-seven feet to the point of impact, a distance of over a tenth of a mile
       (0.135 miles).

      The Defendant was not under the influence of alcohol or drugs at the time of the accident.
He gave the following recitation of the facts:

                I was traveling southbound on US Highway 231 in the evening hours of April
       8, 2007. I was following a tractor trailer for a couple of miles at forty miles an hour
       until I attempted to pass the tractor trailer in the opposite lane inside a passing zone.
       I traveled along the tractor trailer until I realized I was in a no passing zone as I saw
       the lights of another vehicle cresting the hill in the lane of traffic I was traveling. The
       vehicle appeared to be too close to allow me to fall back into the lane behind the
       truck, so I pulled the wheel to the left toward the north bound ditch. The driver of
       the vehicle swerved for the ditch as well and we collided. I am very sad about the
       accident that I know I caused. I regret every day the decision that I made to try to
       pass the truck. I wish that I could take back that decision back [sic] as I feel terrible
       about the loss of life that my actions caused.

       The Defendant was charged with one count of non-intoxicated reckless vehicular homicide
under Tennessee Code Annotated section 39-13-213(a)(1), a Class C felony. On April 10, 2008, he


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submitted an application for pretrial diversion to the district attorney general. The application was
denied on May 8, 2008, citing

       three compelling reasons for denying diversion. (1) The Defendant’s conduct not
       only endangered human life, but actually caused the death of an innocent person and
       endangered two others (2) Based on the Defendant’s lack of correction from
       previous incidents, he is likely to re-offend (3) The legislature has expressed a clear
       intent with the passage of a new law that persons charged with Vehicular Homicide
       by Recklessness should not receive diversion.

        In opining that the Defendant was likely to re-offend, the district attorney general noted one
previous accident on the Defendant’s thirty-seven year driving record. That accident occurred on
May 18, 2005. The district attorney general also noted two citations for speeding and one citation
for running a red light.

        As to the Defendant’s criminal and social history, the district attorney general noted that the
Defendant had one conviction for shoplifting in 1973. The district attorney general otherwise noted
the Defendant’s positive social history and the positive letters of reference he compiled in support
of his pretrial diversion application. The Defendant has a college degree and a master’s degree and
has remained consistently employed. He has no history of mental or physical problems and no
record of problems related to drugs or alcohol.

       Explaining the perceived significance of the legislature’s decision, made after April 8, 2007,
to remove reckless vehicular homicide from pretrial diversion eligibility, the district attorney general
explained that the

       [pretrial diversion] statute expressly prohibits diversion for the crime of Vehicular
       Homicide. While this provision was not in effect at the time of the crash, the
       legislature has subsequently amended the statute to prohibit the grant of diversion for
       vehicular homicides. As pre-trial diversion was a disposition created by the will and
       act and intent of the legislature, courts should pay particular attention to subsequent
       modifications and revisions to the statute. Even if, as the Defendant claims, Ex Post
       Facto protections apply to allow the court to reach the conclusion that the Defendant
       was statutorily eligible at the time of the offense, the current status of the law
       indicates that a District Attorney does not abuse his discretion in denying such
       diversion. Further, it is important to note that a person charged with a class A or B
       felony has never been entitled to diversion. Therefore, a vehicular homicide by
       intoxication has never been entitled to diversion under any Tennessee diversion
       statute. This illustrates that when the legislature amended the pre-trial diversion
       statute to specifically exclude vehicular homicide, the only true effect of the
       amendment was to no longer make vehicular homicide by recklessness eligible. That
       was the specific legislative intent of the amendment, as the other was already
       excluded by the B felony rule.


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         On July 1, 2008, the Defendant filed a petition for writ of certiorari seeking reversal of the
district attorney general’s denial of pretrial diversion. The Criminal Court of Trousdale County
declined to reverse the denial. The Defendant now appeals that decision.

                                                Analysis
        The pretrial diversion statute allows a district attorney general to suspend the prosecution of
an eligible defendant for a period not to exceed two years. 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; 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 program for the prior conviction; and must not be charged with a Class A
felony, a Class B felony, certain class C felonies, certain sexual offenses, driving under the influence,
or vehicular assault. See id. § 40-15-105(a)(1)(B)(i)(a)-(c). As mentioned above, the statute now
makes any vehicular homicide ineligible for pretrial diversion, see Tennessee Code Annotated
section 40-15-105(a)(1)(B)(iii)(k), although reckless vehicular homicide was eligible at the time the
Defendant committed his offense. See 2007 Tenn. Pub. Acts ch. 471, §1 (adding vehicular homicide
as one of the Class C felonies ineligible for pretrial diversion).

        There is no presumption that a person eligible for pretrial diversion is entitled to diversion.
See State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). The “defendant bears the burden of
establishing that pretrial diversion is appropriate and in the interest of justice;” therefore, it is the
responsibility of the defendant to provide “substantial favorable evidence for the district attorney
general’s consideration.” State v. Bell, 69 S.W.3d 171, 179 (Tenn. 2002).

        The decision to grant or deny an application for pretrial diversion rests within the discretion
of the district attorney general. See Tenn. Code Ann. § 40-15-105(b)(3). “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.”
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).

        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. Id. If pretrial diversion is denied, the denial must be
written, must list the evidence considered, discuss which factors were considered, and discuss the
weight accorded to each factor. See State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). “This
requirement entails more than an abstract statement in the record that the district attorney general
has considered these factors.” Curry, 988 S.W.2d at 157 (citations omitted).

       If the application for pretrial diversion is denied, the defendant may appeal to the trial court
for a writ of certiorari. See Tenn. Code Ann. § 40-15-105(b)(3). On review, the trial court is
constrained to consider only the evidence considered by the district attorney general and must


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determine whether the district attorney general has abused his or her discretion. See Bell, 69 S.W.
3d at 177. An abuse of discretion may only be found where the prosecutor fails to consider all the
relevant factors and their weight or reaches a decision not supported by substantial evidence. See
id. On review, the decision made by the district attorney general is presumed correct. Curry, 988
S.W.2d at 158. Therefore, in a close case where the prosecutor could have legitimately granted or
denied the application, the trial court must defer to the judgment of the prosecutor. See State v. Carr,
861 S.W.2d 850, 856 (Tenn. Crim. App. 1993). For purposes of our review, this Court is “bound
by the factual findings made by the trial court unless the evidence preponderates against them.” Bell,
69 S.W.3d at 177.

        “However, if the evidence of record is undisputed and calls for no finding of fact to resolve
the issue, a trial court’s determinations constitute conclusions of law to which an appellate court is
not bound.” Carr, 861 S.W.2d at 856 (citations omitted). Therefore, when the facts are undisputed,
the underlying issue that this Court must determine on appeal remains whether, as a matter of law,
the district attorney general abused his or her discretion in denying pretrial diversion. Id.

         On appeal, the State concedes that the district attorney general abused his discretion by
considering an irrelevant factor, namely the fact that the pretrial diversion statute had been amended
after the date of the Defendant’s conduct to make vehicular homicide ineligible. In reaching this
conclusion, the State relies on the holding in State v. McKim, 215 S.W.3d 781, 788 (Tenn. 2007),
that a district attorney general abuses his or her discretion when categorically declining to grant
diversion to a certain types of diversion-eligible offenses. Although we agree that the district
attorney general abused his discretion by considering the amendment to the pretrial diversion statute,
we have also held that such action violates a defendant’s ex post facto rights under Article I, Section
9 of the United States Constitution. In State v. Michael H. Smith, No. E1999-02722-CCA-R9-CD,
2001 WL 5045 (Tenn. Crim. App., Knoxville, Jan. 2, 2001), we noted that “the [pretrial diversion]
statute in effect at the time of the charged offense applies,” citing for support Boykins v. State, 584
S.W.2d 194, 196 (Tenn. 1979), which held that “retroactive application of [a] stricter probation
standard would be violative of [the] prohibition against ex post facto laws.” Smith, 2001 WL 5045,
at *2 n.2. Because consideration of the legislature’s amendment of the pretrial diversion statute
violated the Defendant’s ex post facto rights, we agree that the district attorney general abused his
discretion.

          We also conclude that the district attorney general in this case, in weighing against the
Defendant the fact that his conduct caused the death of another, abused his discretion by “focus[ing]
. . . on his own opinion of what should and should not be a divertible offense.” McKim, 215 S.W.3d
at 788. The death of another is an element of vehicular homicide, see Tennessee Code Annotated
section 39-13-213(a)(1); to weigh the presence of an element of a divertible crime against a
defendant tends, in contravention of the will of the legislature, to effectively remove that crime from
consideration for pretrial diversion.

       We therefore conclude that the district attorney general in this case impermissibly
“under[took] to apply a local policy contrary to or different from that provided by state law” in


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denying diversion because the instant offense involved a death. Hammersley, 650 S.W.2d at 356.
Our conclusion that the district attorney general focused on the type of offense rather than the
particular circumstances of the offense or the offender is bolstered by the paucity of evidence
supporting the district attorney general’s sole remaining ground for denying diversion: his opinion
that the Defendant was not amenable to correction and was therefore likely to re-offend as a reckless
driver. The district attorney general based this conclusion on the fifty-three-year-old Defendant’s
three traffic citations and one previous accident. The Defendant’s counsel described the Defendant’s
previous accident and driving record at the hearing before the trial court on his motion for a writ of
certiorari:

       Essentially, another car was stopped – there was [sic] two lanes going the same
       direction. The outside lane is stopped, allowed [the Defendant] to pull out and the
       car traveling in the inside lane struck [the Defendant]. Essentially, those facts don’t
       show any recklessness. Two speeding tickets in 37 years don’t show recklessness,
       prior habitual recklessness. . . . He doesn’t have any kind of record for being a
       reckless driver. Like I said, he regrets the decision every single day, and he’s sorry
       for the momentary lapse in judgement.

         The State asks us to remand this case to the district attorney general for reconsideration of
the Defendant’s pretrial diversion eligibility. Our supreme court has stated that “[i]f the trial court
determines that the district attorney general has failed to consider and weigh all relevant factors, the
trial court must reverse the district attorney general’s decision and remand the matter for further
consideration and weighing of all the factors relevant to the pretrial diversion determination.”
McKim, 215 S.W.3d at 788. This procedure should also generally be followed in the event that a
district attorney general relies upon irrelevant factors in denying pretrial diversion, as in this case.
See id. at 789.

        This Court can, however, remand a case to the trial court with an instruction that an order
granting diversion be entered when “there is no substantial evidence to support the decision of the
prosecutor” to deny pretrial diversion. State v. Gordon McGee, Sr., No. M2007-01675-CCA-R10-
CD, 2009 WL 103987, at *8 (Tenn. Crim. App., Nashville, Jan. 13, 2009) (quoting State v. Russell
L. Tipton, No. M2006-00260-CCA-R9-CO, 2007 WL 2295610, at * 7 (Tenn. Crim. App., Nashville,
Aug. 9, 2007)). In this case, we conclude that no substantial evidence supports the district attorney
general’s denial of pretrial diversion. The Defendant has remained consistently employed, has no
significant criminal record, and has an excellent social history. He has no history of alcohol or drug
abuse. Although the district attorney general in this case discussed all relevant factors, his decision
rested on two irrelevant factors: the legislature’s amendment of the pretrial diversion statute and the
fact that the Defendant’s crime caused the death of another. Although relevant, the district attorney
general’s further conclusion that the Defendant is not amenable to correction and likely to re-offend
is neither supported by the Defendant’s driving record nor consistent with the Defendant’s
expressions of remorse for his conduct and its consequences. We conclude that the Defendant has
met his burden of presenting substantial evidence that pretrial diversion is appropriate and in the
interest of justice. See Bell, 69 S.W.3d at 179. We conclude that the district attorney general’s


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denial is not supported by substantial evidence. We therefore remand this case and direct that the
trial court enter an order directing that the Defendant be granted pretrial diversion.

                                             Conclusion
      Based on the foregoing authorities and reasoning, we reverse the judgment of the trial court.
We remand this case to the trial court for entry of an order granting the Defendant pretrial diversion.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




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