State of Tennessee v. Allison Elizabeth McLean

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 10, 2011 Session

STATE OF TENNESSEE v. ALLISON ELIZABETH MCLEAN

Extraordinary Appeal from the Circuit Court for Williamson County
No. II-CR095196 Timothy L. Easter, Judge

No. M2011-00916-CCA-R10-CD - Filed February 15, 2012

In this extraordinary appeal, the Defendant, Allison Elizabeth McLean, appeals the
Williamson County Circuit Court’s order affirming the Assistant District Attorney’s
(“ADA”) denial of pretrial diversion and the trial court’s refusal to grant an interlocutory
appeal of it’s denial of her pretrial diversion request. On appeal, the Defendant argues that
(1) the trial court erred in denying the Defendant’s petition for writ of certiorari because the
Assistant District Attorney (“ADA”) abused her discretion by (a) failing to support her
decision with “substantial evidence;” (b) failing to consider and give proper weight to the
Defendant’s amenability to correction; (c) giving weight to the circumstances of the case and
the need for deterrence without supporting it with evidence; (d) considering improperly the
victim’s age to “enhance” the circumstances of the offense; and (e) giving “little or no
weight” to the Defendant’s lack of criminal record and her eight-year marriage; and (2) the
trial court erred in denying the Defendant’s application for interlocutory appeal. After a
thorough review of the record and relevant authorities, we conclude that the trial court
properly affirmed the ADA’s denial of pretrial diversion. Accordingly, we affirm the
judgment of the trial court.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Russell F. Thomas, Nashville, Tennessee, for the appellant, Allison Elizabeth McLean.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Kim Helper, District Attorney General; Mary Katharine White, Assistant
District Attorney General, for the appellee, State of Tennessee.
 OPINION

I. Facts

The underlying undisputed facts of the case, as stated in the ADA’s denial of the
Defendant’s application for pretrial diversion, are as follows:

On June 11, 2010, [the Defendant], a teacher at The Academy at
Heritage Commons daycare facility, was supervising seven (7) children
between the ages of twelve (12) to eighteen (18) months of age. [The victim],
[a] sixteen month old [child], was in [the Defendant’s] classroom.1 [The
victim] cried for her blanket which is normally kept in a cubby. [The
Defendant] allowed her to hold the blanket for a while to calm her. [The
Defendant] was to take the toddlers to “water play” outside. As such, [the
Defendant] began checking and, if necessary, changing the children’s diapers,
changing the children into their swimsuits and water shoes as well as
collecting the “water play” supplies. These activities were captured on video
tape, which was made part of the case file provided to this office.

At the beginning of the tape, [the Defendant] left one child unattended
on the changing table while she crossed the room to where other children were
playing. The child remained unattended for several moments. While
unattended that child, sat up, moved around and played with nearby items.
Luckily, the child did not fall off of the changing table. [The Defendant]
returned, finished changing the child and began packing bags. Children began
to line up at the door. [The Defendant] took [the victim’s] blanket and
returned it to her cubby, across the room from the exit door, which upset [the
victim]. She stood beneath the cubby and cried. [The Defendant] walked over
and grabbed [the victim’s] arm and dragged her toward the door. [The
victim’s] body lifted off the floor and twisted before [the Defendant] lifted her
up underneath both arms and carried her to the door. [The victim] then moved
away from the door while [the Defendant] tended to other children in the play
area. [The Defendant] picked her up in a cradle position and walked another
toddler by the hand to the door. [The victim] and another toddler moved away
from the door. While carrying another toddler, [the Defendant] walked over
to [the victim] and again grabbed her by her arm, jerking her toward the door.

1
To protect the identity of the minor victim, she will be referred to herein solely as “the victim”, as is
customary in this Court.

2
 [The Defendant] dragged her, while her feet were off the floor, all the way
across the room from the cubbies to the door. [The Defendant] walked right
past one of the other children that had left the door area to return to the table.
Back at the door, [the Defendant] would not let go of [the victim’s] arm as she
flailed to be let go. When the door opened, all of the children exited and [the
Defendant] picked up [the victim] and carried her out . . . .

[The victim’s] mother[] witnessed the entire incident via the streaming
video webcam setup in the daycare room that she had accessed via the internet.
She immediately retrieved [the victim] from the daycare facility. Following
the incident, the daycare reviewed the recorded footage and fired [the
Defendant].

According to [the victim’s mother], [the victim] was in pain and unable
to use her arm normally. She took [the victim] to see Dr. Loshe at Centennial
Pediatrics. Dr. Loshe diagnosed [the victim] with an aggressive case of
nursemaid’s elbow, a subluxation of the elbow. According to Dr. Loshe,
nursemaid[’s] elbow, [] a common injury in children, [caused the victim to
cease using her arm, and the] injury was serious due to the amount of pain
[experienced by the victim]. Typically, pain subsides and normal range of
motion returns once the elbow is returned to its proper position. However, [the
victim] suffered ligament damage. As such, her pain continued and her range
of motion was limited even after the elbow returned to the proper position.
According to [the victim’s mother], it took two weeks or more before [the
victim] would use her arm to pick up things. Dr. Loshe stated that would be
consistent with the history provided. Dr. Loshe further stated that the history
provided and the symptoms that manifested would be considered abuse.

A Williamson County Grand Jury indicted the Defendant for one count of child abuse
as codified in Tennessee Code Annotated section 39-15-401(a), a Class D felony, and, in the
alternative, one count of child abuse or child neglect as codified in section 39-15-401(b), a
Class E felony. The Defendant then sent a letter to the ADA that included her application
for pretrial diversion and supporting documentation. In a detailed letter, the ADA denied the
Defendant’s application for pretrial diversion. In the letter, the ADA discussed the factors
upon which she based her decision, specifically the circumstances of the offense, the
Defendant’s criminal record, the Defendant’s social history, the Defendant’s physical and
mental condition, the Defendant’s amenability to correction, and deterrence.

Regarding the circumstances of the offense, the ADA wrote that “[t]he State places
great weight on the circumstances of the offense,” writing that “[t]he age of the victim and

3
the protracted period of impairment of the arm increase the severity of the offense.” The
ADA determined that the Defendant “violated a position of private trust . . . she had a duty
to watch out for the victim while she was in her care.” The ADA supported her decision,
stating that “[t]he violation is exacerbated by the fact that [the Defendant] is a certified
teacher with a degree in education . . . [s]he has received much more training than that
offered by the daycare facility . . . her training and experience provided [the Defendant] with
the tools to effectively handle the situation.”

Regarding her criminal record, the ADA acknowledged that the Defendant did not
have a criminal record. She however determined that this factor did not outweigh the other
factors in this case. The ADA stated that “[t]his factor weighs in favor of pre-trial diversion;
however, the State gives it little weight in that a lack of criminal record is a pre-requisite for
eligibility and all qualified offenders have no criminal record.”

The ADA determined that “the [D]efendant’s social history weighs in favor of pre-
trial diversion.” The ADA noted that the Defendant had a good work history, provided a list
of personal references and a list of organizational membership, and had a positive
educational history. The ADA stated, however, that the “majority of references provided
w[]ere friends of the family and knew the [D]efendant as a child or teen. Most of the
personal references contacted by this office have had limited contact with the [D]efendant
in her adult years.” Although none of the references have been in “close contact with [the
Defendant] on a regular basis” and have not “observe[d] how she lives her life on a daily
basis[,]” all of the references contacted gave “very positive recommendations.” Regarding
the Defendant’s educational history, the ADA stated that “the State is of the opinion that
someone with her education and training would be held to a higher standard under these
circumstances.”

Regarding the Defendant’s physical and mental condition, the ADA said that the
medical records confirm that the Defendant suffers from fibromyalgia and diabetes. The
records also show a history of depression and anxiety. Psychiatric and therapy records show
that the Defendant had been in treatment for her depression and anxiety since at least 2008.
The ADA notes that, during the Defendant’s teaching years, clinic notes indicate that the
Defendant was “overwhelmed” or “highly stressed” while at work “because of dealing with
her students [sic] behavioral problems.” The ADA said that “[i]t is concerning to the State
that despite several years of therapy and medications, the daycare facility was not informed
of her anxiety issues. Her information sheet merely mentions her physical aliments.” As a
result, the ADA categorized this factor as “neutral.”

Regarding the Defendant’s amenability to correction and deterrence, the ADA stated
that “[t]he State is concerned that the [D]efendant would act the same way under the same

4
circumstances.” Although the ADA found that the Defendant “express[ed] remorse and
indicate[d] an awareness,” which shows she is “amenable to correction,” she said that
“granting pre-trial diversion . . . would not serve the public interest in this case.” She stated
that the need for deterrence “may be considered when determining whether pre-trial diversion
would serve the ends of justice.” She concluded that “[g]ranting pre-trial diversion would
undermine the seriousness of [the Defendant’s] actions and convey a message that no
consequences would result from such behavior.”

The Defendant filed a petition for writ of certiorari with the trial court, claiming that
the ADA abused her discretion when she denied the request for pretrial diversion. The trial
court held a hearing on the matter, wherein defense counsel argued that “the facts and
evidence considered by the State and the case law examining the appropriate use of those
factors do not support those being an appropriate denial in this case.” Defense counsel
discussed the factors considered by the ADA, citing case law and concluding that the
evidence did not support the weight given to the factors by the ADA. Defense counsel
argued,

The factors alone are not magic words that the State can simply put in a
document and meet their burden. The case law requires more than that. The
case law requires that there be [substantial]2 evidence to support the denial of
pretrial diversion, and the court can look to whether the prosecutor gave proper
or improper weight to certain factors or whether there is not substantial
evidence to support those factors.

In response, the ADA stated that she properly considered all the relevant factors, and “there
is substantial evidence in the record to show that [the Defendant] should not be granted
pretrial diversion.” She further responded that “case law does state that the circumstances
of the offense may be used alone to deny diversion. Here the State did more than just rely
upon the circumstances of the offense.” The ADA argued that defense counsel’s
“memorandum basically ask[ed] the Court to substitute his judgment for the State’s
judgment.” After hearing the arguments, the trial court affirmed the ADA’s decision, finding
that she did not abuse her discretion.

The Defendant subsequently filed an application for permission to seek interlocutory
appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, which the trial
court denied. The Defendant filed an application for extraordinary appeal pursuant to Rule
10 of the Tennessee Rules of Appellate Procedure, and the State responded to this

2
As pointed out in the Defendant’s brief, the court reporter recorded “circumstantial” rather than
“substantial” in this portion of the hearing transcript.

5
application. This Court then entered an order granting the Defendant’s application for an
extraordinary appeal in this case.

II. Analysis

The Defendant argues on appeal that: (1) the trial court erred in denying the
Defendant’s petition for writ of certiorari because the ADA abused her discretion by (a)
failing to support her decision with “substantial evidence;” (b) failing to consider and give
proper weight to her amenability to correction; (c) giving weight to the circumstances of the
case and the need for deterrence without supporting it with evidence; (d) improperly
considering the victim’s age to “enhance” the circumstances of the offense; and (e) giving
“little or no weight” to the Defendant’s lack of criminal record and her eight-year marriage;
and (2) the trial court erred in denying the Defendant’s application for interlocutory appeal.
The State counters that the ADA properly considered and weighed the relevant factors, and
substantial evidence in the record supports the denial of the Defendant’s application for
pretrial diversion.

The pretrial diversion statute allows the State to suspend the prosecution of an eligible
defendant for a period of up to two years. See T.C.A. § 40-15-105(a)(1) (2006). A defendant
is statutorily eligible for pretrial diversion if the defendant: (1) has not previously been
granted pretrial diversion; (2) does not have a disqualifying prior conviction; (3) and is not
seeking pretrial diversion for a class A felony, a class B felony, certain class C felonies, a
sexual offense, driving under the influence, or vehicular assault. Id. at (a)(1)(B)(i).

Nonetheless, statutory eligibility for pretrial diversion does not entitle a defendant to
diversion. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the State has the sole
discretion to determine whether to grant pretrial diversion to a defendant who meets the strict
statutory requirements. T.C.A. § 40-15-105(b)(3) (2006); State v. Pinkham, 955 S.W.2d 956,
959 (Tenn. 1997). The State must focus on the defendant’s amenability to correction and
consider any factors which demonstrate the defendant’s propensity to become a repeat
offender. State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002); State v. Hammersley, 650
S.W.2d 352, 355 (Tenn. 1983). These factors include: (1) the circumstances of the offense;
(2) the defendant’s criminal record; (3) the defendant’s social history; (4) where appropriate,
the defendant’s physical and mental condition; (5) the likelihood pretrial diversion will serve
the ends of justice; and (6) the best interest of both the public and the defendant.
Hammersley, 650 S.W.2d at 355. The State may also consider the need for general
deterrence. State v. McKim, 215 S.W.3d 781, 787 (Tenn. 2007).

If pretrial diversion is denied, the denial must be in writing, listing and discussing the
various factors considered and the weight attributed to each factor. Curry, 988 S.W.2d at

6
157. Failure to consider and articulate relevant factors will constitute an abuse of discretion.
State v. Bell, 69 S.W.3d 171, 178 (Tenn. 2002). Additionally, the State must avoid relying
upon irrelevant factors when denying diversion. Id.

A defendant may appeal to the trial court for a writ of certiorari, if an application for
pretrial diversion is denied, to determine whether the prosecution abused its prosecutorial
discretion. T.C.A § 40-15-105(b)(3) (2006). In reviewing the prosecutor’s decision, the trial
court must view the decision of the prosecutor as “presumptively correct and it should only
be set aside on the basis of patent or gross abuse of prosecutorial discretion.” State v.
Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980). The discretion to grant or deny
pretrial diversion rests with the prosecution rather than the trial court. Bell, 69 S.W.3d at
179. The trial court must consider only the evidence considered by the prosecution and
conduct a hearing only to resolve factual disputes concerning the application. Curry, 988
S.W.2d at 157-58. The trial court may not reweigh the evidence or substitute its view for that
of the prosecutor. Bell, 69 S.W.3d at 179. Before the trial judge can find an abuse of
discretion, the record must show an absence of any substantial evidence to support the refusal
of the prosecution to enter into a memorandum of understanding. Watkins, 607 S.W.2d at
488.

If the trial court does not find an abuse of discretion and affirms the prosecutor’s
denial of the application for pretrial diversion, the defendant may then seek an interlocutory
review in this Court. Tenn. R. App. P. 9, 10. On 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.” State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim.
App.1993) (citations omitted). Accordingly, in a case where the facts are undisputed, this
Court must determine whether the prosecutor abused his or her discretion in denying the
defendant’s application for pretrial diversion. Id. This Court must determine whether the
trial court’s decision is supported by a preponderance of the evidence. Curry, 988 S.W.2d
at 158.

1. Petition for Writ of Certiorari

In the case under submission, the trial court, when it reviewed the ADA’s decision to
deny the Defendant’s application for pretrial diversion, made the following findings:

The Assistant District Attorney examined and considered all the relevant
factors. Furthermore she discussed in writing all of the relevant factors that
she considered and the weight she attributed to each factor. The decision of

7
 the prosecutor to grant or deny pretrial diversion is presumptively correct and
will not be set aside absent abuse of discretion. [citation omitted]. A certiorari
review by this Court requires a review of the method used by the prosecution,
but not the intrinsic correctness of the prosecutor’s denial decision. [citation
omitted].

Likewise, we also find in our review of the record that the ADA listed and discussed the
relevant factors in her written denial of the Defendant’s application for pretrial diversion.

A. “Substantial Evidence” to Support Denial of Pretrial Diversion

In her appeal, the Defendant first generally argues that the ADA did not base her
denial on facts supported by substantial evidence in the record. See Yancey, 69 S.W.3d at
559 (“[T]he trial court should examine each relevant factor in the pretrial diversion process
to determine whether the district attorney general has considered that factor and whether the
district attorney general's finding with respect to that factor is supported by substantial
evidence.” The Defendant argues that the “Order entered by the Trial Court, demonstrate[s]
that the Trial Court did not undergo an analysis of whether there was substantial evidence
overall . . . sufficient to support the denial of diversion.”

In our review of the denial of pretrial diversion, we must determine whether the ADA
abused her discretion. Bell, 69 S.W.3d at 179. After reviewing the record, we conclude that
the ADA’s evaluation of the relevant factors was supported by substantial evidence. In her
letter denying pretrial diversion, the ADA listed each factor, explained her decision on each
factor, and used specific examples of the Defendant’s background and actions as related to
the case. Therefore, to address the general argument by the Defendant that the ADA did not
support her decision with substantial evidence, we conclude that, as a whole, the ADA
supported her decision with substantial evidence from the record in her consideration of the
relevant factors. Accordingly, the ADA did not abuse her discretion, and the Defendant is
not entitled to relief on this issue.

B. ADA’s Focus on the Defendant’s Amenability to Correction

Second, the Defendant contends that the ADA did not “focus on” and gave little
weight to the Defendant’s amenability to correction. Specifically, the Defendant asserts that
the ADA spent “only three sentences of a five page document discussing [the Defendant’s]
amenability to correction,” which the Defendant claims “clearly demonstrated that [the ADA]
did not focus on this factor.” In addition, the Defendant argues that the ADA failed to focus
on this factor because, within her discussion of the Defendant’s amenability to correction,
the ADA mentioned that pretrial diversion “would not serve the public interest in this case”

8
and also discussed the consequences of “possible media coverage.” Further, the Defendant
asserts that the ADA found that the Defendant was amenable to correction and, as a result,
“giving such short shrift to the finding that [the Defendant] is amenable to correction in favor
of the circumstance of the case and the need for deterrence is an abuse of discretion.” The
State counters that the ADA “properly considered and weighed the [D]efendant’s amenability
to correction.” The State explains that “[a]lthough [the ADA] found that the [D]efendant is
amenable to correction, that finding was outweighed by the concern that the [D]efendant
‘would act the same way under the same circumstances.’”

We conclude that the ADA fully considered the Defendant’s amenability to correction.
Although the Defendant may disagree with the ADA’s finding that the need for deterrence,
due to “other incidents of the charged offense are increasingly present in the community and
incidents of this nature have received substantial publicity beyond that normally expected in
a typical case,” outweighed the ADA’s determination that the Defendant would be amenable
to correction, we conclude that the ADA did not abuse her discretion by finding that the
Defendant was likely to reoffend and that this factor outweighed the Defendant’s amenability
to correction. See Carr, 861 S .W.2d at 857 (“[T]he prosecutor considered all relevant
factors and concluded that the significance of the circumstances surrounding the defendant’s
criminal conduct and the deterrent effect . . .outweighed the other factors. Reliance upon
these two factors was authorized in Hammersley and they have justified the denial of pretrial
diversion in previous cases.” (citation omitted)). In her denial letter, the ADA noted that the
Defendant “does express remorse and indicated an awareness that the situation should have
been handled differently.” The ADA, however, properly weighed the other relevant factors
and determined those factors outweighed the Defendant’s amenability to correction. The
ADA did not abuse her discretion, and the Defendant is not entitled to relief on these issues.

C. Circumstances of the Offense and Need for Deterrence

Next, the Defendant argues that the ADA abused her discretion because the weight
given to the circumstances of the offense and the need for deterrence were not supported by
the evidence. The Defendant further asserts that these factors “‘are not of such
overwhelming significance’ that they trump all of the other positive factors, including most
importantly, the fact that [the Defendant] has been found to be amenable to correction.” See
State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (“[W]hile the circumstances of the
case and the need for deterrence may be considered as two of the many factors, they cannot
be given controlling weight unless they are ‘of such overwhelming significance that they
[necessarily] outweigh all other factors.’” (citation omitted)). Citing Curry, the Defendant
first contends that the ADA’s “placement of great weight” on the circumstances of the
offense is “simply not supported by the evidence.” See Curry, 988 S.W.2d at 159 (“[T]he
prosecutor’s denial letter concentrated solely upon the circumstances of the offense and,

9
arguably, a veiled consideration of deterrence. There was no apparent consideration given
to the defendant’s lack of a criminal record, favorable social history, and obvious amenability
to correction.”).

We note, initially, that “the circumstances of the offense and the need for deterrence
may alone justify a denial of diversion, but only if all of the relevant factors have been
considered as well.” Curry, 988 S.W.2d at 158 (citing Washington, 866 S.W.2d at 951). In
this case, the ADA specifically determined that the circumstances of the offense, the need
for deterrence, and the ends of justice and the interests of the public outweighed the
Defendant’s amenability to correction, positive social history, lack of criminal history, and
her physical and mental conditions. In her letter of denial, the ADA listed each of the
relevant factors, supporting each with facts from the case and background information on the
Defendant. Specifically, the ADA placed “great weight” on the circumstances of the offense,
considering the young age of the victim, the protracted period of pain and impairment
suffered by the victim, the Defendant’s previous work and educational experience, and the
Defendant’s violation of private trust. The ADA noted that the Defendant was highly trained
in child care and was a certified teacher who had previously worked in the public school
system. The ADA noted that “[the Defendant’s] training and experience provided [the
Defendant] with the tools to effectively handle the situation.” Further, the ADA properly
considered the evidence contained on the daycare’s surveillance video, which details the
Defendant’s actions and behavior. Therefore, the ADA properly considered and weighed the
relevant factors in this case, and we conclude that the denial of pretrial diversion was
appropriate and supported by substantial evidence.

The Defendant also argues that substantial evidence does not support the weight
afforded to the need for deterrence. The Defendant cites State v. Hooper, 29 S.W.3d 1
(Tenn. 2000), for its list of five factors to consider when analyzing whether deterrence alone
could justify a denial of probation. See also Hammersley, 650 S.W.2d at 353-55
(“[D]eterrence should be considered in pretrial diversion cases in the same manner as we
have approved for consideration in probation cases.”). The Defendant uses Hooper and the
factors listed therein to support his proposition that “deterrence is not a significant enough
factor to justify the denial of pretrial diversion.” The Defendant, however, misplaces his
reliance in Hooper because, in the case at hand, the ADA did not rely on deterrence alone in
her denial of pretrial diversion to the Defendant. The Tennessee Supreme Court has stated
that the State may consider the need for general deterrence in its determination of pretrial
diversion. State v. McKim, 215 S.W.3d 781, 787 (Tenn. 2007). In her letter, the ADA
explained that general deterrence was necessary “because other incidents of the charged
offense are increasingly present in the community and incidents of this nature have received
substantial publicity beyond that normally expected in a typical case.” The ADA further
explained that “[d]aycare employees, teachers and all who are charged with car[ing] for

10
young children should not be left with the impression that there are no consequences for
behavior that results in injury to a child.” The ADA concluded that “[g]ranting pre-trial
diversion would undermine the seriousness of [the Defendant’s] actions and convey a
message that no consequences would result from such behavior.” In light of the ADA’s
letter, she properly considered the need for deterrence in this case, and supported her decision
with substantial evidence. Therefore, the Defendant is not entitled to relief on this issue.

D. Consideration of Victim’s Age

The Defendant contends that the ADA improperly considered the victim’s age as an
“enhancement” factor in her decision denying pretrial diversion when she stated, “[t]he age
of the victim and the protracted period of impairment of her arm increase the severity of the
offense.” The Defendant argues that the ADA substituted her own opinion of the
“seriousness” of the crime, which “is not grounds for denial of diversion.” The Defendant
cites State v. McKim to support his contention, and states that, in that case, the Tennessee
Supreme Court reversed a denial of pretrial diversion because “the prosecutor substituted his
own opinion of what legislative policy should be as to what offenses are too serious to be
divertable.” 215 S.W.3d 781, 788 (Tenn. 2007) (holding “[t]he prosecutor’s consideration
of, and emphasis upon, an irrelevant factor so tainted his decision-making process as to
constitute an abuse of discretion.”). The situation in McKim, however, differs from the case
at hand. In McKim, “the assistant district attorney general . . . focused not on the defendant’s
amenability to correction but rather on his own opinion of what should and should not be a
divertible offense.” Id. The Tennessee Supreme Court found that, “[i]n doing so, the
assistant district attorney general considered a factor not relevant to this determination of
whether to grant pretrial diversion . . . .” Id. In McKim, the prosecutor denied diversion
based upon the commission of a specific crime, not because of the circumstances of the
specific crime committed. In the current case, the ADA considered all of the relevant factors
in her diversion determination, including the circumstances of the offense, the defendant’s
criminal record, her social history, her physical and mental condition, deterrence, and the best
interest of both the public and the Defendant. The ADA noted the victim’s age while
considering all of the circumstances of the offense. Because of her age, the victim depended
on the Defendant and others at the daycare facility to address her needs, care for her, and
keep her safe while she remained in their care. As a result, the ADA properly considered
the age of the victim when she addressed the circumstances of the offense. We conclude that
the ADA adequately delineated her reasoning for the denial and did not abuse her discretion
as a prosecutor. Thus, the Defendant is not entitled to relief.

E. The Defendant’s Criminal History and Marriage

The Defendant argues that the ADA “gave little or no weight” to her lack of a criminal

11
record, pointing out that the pretrial diversion statute does not require that an eligible
defendant have no criminal record. In her letter, the ADA noted that the Defendant had no
criminal record, which makes her eligible for diversion and “weighs in favor of pre-trial
diversion.” The ADA, however, further noted that “the State gives it little weight in that a
lack of criminal record is a pre-requisite for eligibility and all qualified offenders have no
criminal record.” Therefore, the ADA stated, “[n]ot all eligible offenders are appropriate
candidates for the largess of pre-trial diversion.”

Tennessee Code Annotated section 40-15-105(a)(1)(B)(i)(b) states,

[A] “qualified defendant” means a defendant who meets each of the following
requirements . . . [t]he defendant does not have a prior misdemeanor
conviction for which a sentence of confinement is served or a prior felony
conviction within a five-year period after completing the sentence or
probationary program for the prior conviction.

Id. Because no defendant eligible for pretrial diversion can have a significant criminal
record, the ADA properly stated that this Defendant’s lack of a criminal record does not
weigh heavily in her determination. Therefore, the ADA correctly afforded “little weight”
to the fact that the Defendant had no criminal record. The Defendant is not entitled to relief
as to this issue.

Regarding the Defendant’s eight-year marriage, the Defendant argues that the ADA’s
failure to consider the Defendant’s marriage demonstrated that “the State’s denial of
diversion was not supported by substantial evidence.” The Defendant relies on State v.
Daniel Shane Malone, W2004-01125-CCA-R9-CD, 2005 WL 957103 (Tenn. Crim. App.
Apr. 25, 2005), which reversed the judgment of the trial court because the prosecutor did not
consider all of the relevant factors in his denial of pretrial diversion to the defendant. The
Defendant in this case appears to cite Daniel Shane Malone to support her argument that the
ADA should have considered her marriage as a positive factor and weighed it in favor of
pretrial diversion for the Defendant. The State argues that the Defendant did not provide any
information in her application for pretrial diversion regarding the importance of her marriage.
The State notes that the “only notable references regarding [the Defendant’s] marital status
is an ‘X’ next to the ‘married’ box on the initial application for pretrial diversion, and her
husband’s name, . . . as well as the date of her marriage . . . .” Further, the State contends
that “it is unclear what effect, if any, her marital status would have had.” We agree with the
State. The Defendant, first, misconstrues Daniel Shane Malone as analogous to her case.
The outcome in that case was a direct result of the failure of the prosecutor to consider all
relevant factors in his diversion determination. In this case, the ADA did consider all of the
factors and appropriately weighed each in her decision to deny diversion. Further, regarding

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the Defendant’s marital status, the Defendant did not provide any information on her
application highlighting the importance of her marriage. As a result, the ADA did not
specifically mention the Defendant’s marital status in her denial letter. Although it does not
relieve the prosecutor of the obligation of examining all relevant factors, a defendant bears
the burden of establishing suitability for diversion. State v. Bell, 69 S.W.3d 171, 177 (Tenn.
2002). The Defendant did not provide such information in her application, so the ADA in
the present case did not consider it negatively or positively in her diversion determination.
We find that the ADA did consider all relevant factors, including all factors provided to her
by the Defendant. Therefore, the ADA did not need to specifically consider the Defendant’s
marital status in her decision, and the Defendant is not entitled to relief as to this issue.

2. Application for Interlocutory Review

The Defendant argues that the trial court erroneously declined to grant her appellate
review under Rule 9 of the Tennessee Rules of Appellate Procedure. In her argument, the
Defendant simply states that this Court’s grant of her extraordinary appeal, pursuant to Rule
10 of the Tennessee Rules of Appellate Procedure, “effectively mooted” this issue, which
appears to serve as a waiver of review on this issue. We will, however, address the merits
of the issue.

Rule 9 of the Tennessee Rules of Appellate Procedure states that, in the discretion of
the trial court and appellate court, an interlocutory appeal may be granted after considering
the following:

(1) the need to prevent irreparable injury, giving consideration to the severity
of the potential injury, the probability of its occurrence, and the probability
that review upon entry of final judgment will be ineffective; (2) the need to
prevent needless, expensive, and protracted litigation, giving consideration to
whether the challenged order would be a basis for reversal upon entry of a
final judgment, the probability of reversal, and whether an interlocutory appeal
will result in a net reduction in the duration and expense of the litigation if the
challenged order is reversed; and (3) the need to develop a uniform body of
law, giving consideration to the existence of inconsistent orders of other courts
and whether the question presented by the challenged order will not otherwise
be reviewable upon entry of final judgment.

In Defense counsel’s argument on the issue to the trial court, it cited the issues of
“irreparable injury” and the need to “prevent needless, expensive protracted litigation” as its
basis for seeking interlocutory appeal. Defense counsel pointed the trial court to State v.
McKim and that case’s discussion of when it is appropriate to grant interlocutory appeal from

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a denial of pretrial diversion. 215 S.W.3d at 781. Defense counsel quoted, “[i]n the unique
context of pretrial diversion, however, the courts to which application for interlocutory
appeal is made should construe liberally the defendant's alleged grounds,” supporting its
contention that the trial court should grant interlocutory appeal. Id. at 791. After hearing the
argument, the trial court referred the Defendant to his order denying the Defendant’s Writ
of Certiorari of the State’s denial of pretrial diversion. The trial court further stated that it
reviewed the specific reasons for granting a Rule 9 interlocutory appeal, and it found that
none of the reasons raised by the rule were applicable in this case and denied the request for
Rule 9 appeal.

After review, this Court finds no abuse of discretion by the trial court in its decision.
The Defendant does not show that she would suffer irreparable injury, that needless,
expensive, and protracted litigation would result, or that there exists a need to develop a
uniform body of law. As the trial court stated, it does not appear that any of these factors are
present in this case, and the trial court correctly denied the Defendant’s Rule 9 application.
The Defendant is not entitled to relief as to this issue.

III. Conclusion

Upon review of the record and relevant authorities, we affirm the judgment of the trial
court.

________________________________
ROBERT W. WEDEMEYER, JUDGE

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