Opinion
No. 02C01-9507-CC-00194.
October 10, 1997.
HARDIN COUNTY, HON.C. CREED McGINLEY, JUDGE, (Pre-Trial Diversion).
AFFIRMED
FOR THE APPELLANT: W. Jay Reynolds.
FOR THE APPELLEE: Charles W. Burson, Reynolds Reynolds, Attorney General and Reporter, William David Bridgers, Assistant Attorney General, Robert Radford, District Attorney General, John Overton, Assistant District Attorney.
OPINION FILED: ______________________________
OPINION
This is an interlocutory appeal pursuant to Rule 9, Tennessee Rules of Appellate Procedure, from the judgment of the Circuit Court of Hardin County affirming the District Attorney's refusal to grant pretrial diversion. On appeal, Appellant claims that the District Attorney abused his discretion by failing to consider all of the factors he is required by law to consider. For the reasons set forth, the judgment of the trial court is affirmed.
On March 20, 1995, Appellant Shonda Kay McGill was indicted for three counts of aggravated burglary. Appellant applied for pretrial diversion. By letter dated May 9, 1995, the District Attorney denied the application, writing as follows:
I am compelled to deny your client diversion on the following grounds:
1. The fact that there are three distinct home burglaries committed over a three week period indicates a continuing intention to violate the law and not just a casual flirtation with an illegal act.
2. Your client has a sporadic work record that would indicate instability in functioning as a contributing member of society.
3. It is certainly clear from my vantage point that the crime of aggravated burglary is a prevalent one and one that is steadily increasing in number in this county. I have, therefore, considered deterrence, both of the defendant and others, as a factor.
4. I have also taken into consideration the views of the victims as expressed in the presentence report.
After considering all factors set out by law, I do not feel this is an appropriate case for the extraordinary relief of diversion.
Upon the District Attorney's denial, Appellant petitioned the Circuit Court of Hardin County for a writ of certiorari, alleging that the District Attorney abused his discretion in denying her application. The Circuit Court of Hardin County affirmed the District Attorney's denial.
Tennessee Code Annotated Section 40-15-105 creates a procedure for diverting deserving individuals charged with certain crimes out of the criminal trial process. The decision to grant this pretrial diversion rests in the discretion of the District Attorney. Tenn. Code Ann. § 40-15-105(b)(3) (Supp. 1996). In exercising that discretion, the Tennessee Supreme Court has offered this guidance:
[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. . . . 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.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, "the focus on amenability to correction is not an exclusive one. . . ." State v. Carr, 861 S.W.2d 850, 855 (Tenn.Crim.App. 1993). Deterrence of the defendant and others is also a proper factor to consider. Hammersley, 650 S.W.2d at 354. In fact, the circumstances of the crime and the need for deterrence may outweigh other applicable factors and justify the denial of pretrial diversion. See e.g. State v. Helms, 720 S.W.2d 474 (Tenn.Crim.App. 1986); State v. Holland, 661 S.W.2d 91 (Tenn.Crim.App. 1983).
In deciding whether to grant diversion, the District Attorney must consider all the relevant factors and cannot ignore any relevant factors. See State v. Herron, 767 S.W.2d 151, 155 (Tenn. 1989); State v. Markham, 755 S.W.2d 850, 853 (Tenn.Crim.App. 1988). When denying an application for pretrial diversion, the District Attorney must clearly articulate the specific reasons for denial in the record in order to provide for meaningful appellate review. Hammersley, 650 S.W.2d at 355. The record must reflect consideration of all the relevant factors. State v. Kirk, 868 S.W.2d 739, 742-43 (Tenn.Crim.App. 1993). As the Tennessee Supreme Court said in Herron:
This requirement (that the District Attorney consider all relevant factors) entails more than an abstract statement in the record that the district attorney general has considered these factors. He must articulate why he believes a defendant in a particular case does not meet the test. If the attorney general bases his decision on less 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. (emphasis added)
767 S.W.2d at 156. In Carr this Court said in dicta that failure of the record to reflect that the District Attorney considered all of the applicable factors would allow a reviewing court to find an abuse of discretion. 861 S.W.2d at 858.
When reviewing a District Attorney's decision to deny pretrial diversion, the trial court must uphold the District Attorney's decision unless there has been an abuse of discretion. Pace v. State, 566 S.W.2d 861 (Tenn. 1978). In other words, the decision "of the prosecutor is presumptively correct and it should only be set aside on the basis of patent or gross abuse of prosecutorial discretion." Id. at 870 (concurring op., J. Henry). The trial court may find an abuse of discretion only if there is an absence of any substantial evidence to support the decision of the District Attorney. Hammersley, 650 S.W.2d at 356. As this Court pointed out in State v. Brown, 700 S.W.2d 568, 570 (Tenn.Crim.App. 1985), under the abuse of discretion standard, a trial judge is not allowed to determine whether he thinks a defendant should be granted diversion, but is restricted to determining whether the District Attorney abused his discretion. 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 Attorney. 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 those findings. Helms, 720 S.W.2d at 476. However, in cases where there is no factual dispute, an appellate court is left to determine whether the trial court properly concluded that the District Attorney did or did not abuse his discretion. Since the appellate court is reviewing a conclusion of law made by the trial court and such findings are not binding on an appellate court, the review by an appellate court where there are no contested findings of fact is de novo. Carr, 861 S.W.2d at 856; Helms, 720 S.W.2d at 476. The District Attorney's decision must stand unless there is a lack of any substantial evidence to support it. Hammersley, 650 S.W.2d at 356.
In the case at bar, there is no dispute over the trial court's findings of fact. Thus, we focus our review on whether, as a matter of law, the District Attorney abused his discretion. Carr, 861 S.W.2d at 856. As a preliminary matter, we recognize that the District Attorney did not document consideration of all the applicable factors in his letter of denial. The District Attorney failed to mention Appellant's lack of criminal record and positive social history. In addition, the District Attorney failed to state why the factors on which he chose to rely outweighed the other factors he was required to consider. Therefore, the District Attorney's letter is deficient. The issue then becomes whether a District Attorney's deficient letter mandates a finding that the District Attorney abused his discretion.
As stated previously, it is important for the District Attorney to memorialize his consideration of the applicable factors in his denial letter. See e.g., Herron, 767 S.W.2d at 156; Markham, 755 S.W.2d at 853; Kirk, 868 S.W.2d at 742-43; Carr, 861 S.W.2d at 858. The letter found as an appendix in Carr is an excellent example of how such letters should be written. Carr, 861 S.W.2d at 859. In the Carr letter, the District Attorney stated the reasons for denial, the factors which reflected positively on the applicant and why the positive factors were outweighed.
Although the District Attorney's letter is important, deficiencies in such letters do not always mandate a finding of abuse of discretion. While the letter in this case could have been more comprehensive, it does reflect a deliberate, reasoned judgment. The District Attorney's letter was not so deficient that in and of itself it constitutes an abuse of discretion.
In addition, there is substantial evidence to support the District Attorney's denial of diversion. The first reason the District Attorney gave for denying Appellant's application was that the circumstances of the offense reflect more than a casual flirtation with illegal activity. Appellant was charged with three counts of aggravated burglary for burglaries which stretched over a three week period. Although two of the burglaries were committed in one night, Appellant chose to participate in another burglary two weeks later. We conclude that Appellant's actions indicated a sustained intent to violate the law and not simply a one time, impetuous illegal act.
The District Attorney also gave Appellant's sporadic work record as a reason for denying her application for pretrial diversion. Between 1993 and 1994, Appellant had three different jobs. Nevertheless, Appellant is nineteen years old, and one would not necessarily expect a lengthy established career history. While social history is an appropriate consideration, application of this factor in support of the denial of pretrial diversion is not supported by this record. See Hammersley, 650 S.W.2d at 355. However, improper application of one factor does not prevent us from finding that there is substantial evidence to support the District Attorney's denial. Carr, 861 S.W.2d at 857.
The District Attorney also relies on the deterrence of Appellant and others in denying Appellant's application. Deterrence of the defendant and others is a proper consideration in pretrial diversion cases. Hammersley, 650 S.W.2d at 355. As we observed in Holland, "No one is in a better position to be informed of criminal activity in a circuit than the District Attorney General." 661 S.W.2d at 93. The need to deter Appellant and others from committing aggravated burglaries supports the District Attorney's denial of Appellant's application for pretrial diversion.
Finally, the District Attorney cited the views of the victims as a reason for denying Appellant's application. While the views of victims do not constitute a separate factor which the District Attorney must consider, they do relate to the nature and circumstances of the offense. The victims expressed great sorrow at the irreplaceable loss of valuables such as a son's savings and a camera containing film with Christmas photos. One victim was financially harmed as her insurance would not cover the economic loss she sustained. The victims were so scared by the burglaries that one had trouble sleeping at night and another slept with a gun by her head. Again we find that the circumstances of the offense support the District Attorney's denial.
We note that Appellant has no prior criminal record and seems to have a favorable social history. Nevertheless, the circumstances of the crime and the need for deterrence support the District Attorney's denial and outweigh these factors which weigh in favor of approval of pretrial diversion.
Although one of the factors offered by the District Attorney is not supported by the record, we find that the District Attorney's denial is supported by substantial evidence of other relevant considerations and that the District Attorney did not abuse his discretion. We therefore affirm the judgment of the trial court.
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 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 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 should decide the issue of diversion upon full and due consideration of all of the factors relevant to pretrial diversion.
___________________________ Joseph M. Tipton, Judge
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOSEPH M. TIPTON, JUDGE
___________________________________ DAVID H. WELLES, JUDGE