State of Tennessee v. Stephen McKim

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 14, 2006 Session Heard in Memphis1

STATE OF TENNESSEE v. STEPHEN McKIM

Extraordinary Appeal from the Shelby County Criminal Court
No. 04-07227 Joseph B. Dailey, Judge

No. W2005-02685-SC-S10-CD - Filed on January 29, 2007

We accepted this extraordinary appeal in order to (1) determine the effect of a district attorney
general’s consideration of an irrelevant factor in deciding whether to grant pretrial diversion and (2)
clarify when an interlocutory appeal from a denial of pretrial diversion should be granted. In this
case, the defendant was indicted for criminally negligent homicide following the death of his
daughter after the defendant left her in his car on a hot summer day. The defendant applied for
pretrial diversion. The district attorney general’s office denied diversion, in part on the basis of its
judgment that diversion of a negligent homicide “appears to be an aberration of the law.” The trial
court refused to overturn the prosecutor’s decision, and the defendant applied for permission to
pursue an interlocutory appeal. The trial court denied permission, and the defendant then applied
to the Court of Criminal Appeals for permission to pursue an extraordinary appeal. The Court of
Criminal Appeals denied the defendant’s application. We granted review and hold that the district
attorney general abused his discretion when he relied upon an irrelevant factor in denying pretrial
diversion. The trial court’s judgment affirming the denial of the defendant’s application for pretrial
diversion is reversed, and this matter is remanded to the trial court for further proceedings consistent
with this opinion.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment
of the Trial Court Reversed; Remanded

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER and GARY R. WADE, JJ., and SHARON G. LEE, SP .J., joined.

Mark S. McDaniel, Memphis, Tennessee, for the appellant, Stephen McKim.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brian Clay
Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Kevin Rardin,
Assistant District Attorney General; for the appellee, the State of Tennessee.

1
Oral argument was heard in this case on November 14, 2006, in M emphis, Tennessee, as part of this Court’s
S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
 OPINION

FACTS AND PROCEDURAL HISTORY

On the morning of August 9, 2004, the defendant, Stephen McKim, was running late for a
meeting with his co-workers at Central North Church, where he serves as a Minister to Students.
Before leaving his home for work, he placed his seven-month-old daughter Mia in a carseat in the
backseat of his car. Mia attended a daycare center next door to the church where the defendant
worked. By the time the defendant arrived at his workplace, Mia had fallen asleep. Forgetting that
his daughter was in the car, the defendant rushed into his meeting. When the defendant remembered
that he had not removed his daughter from his car, he hurried to retrieve her. Although she was still
alive at that time, Mia died a short time later from hyperthermia as a result of the high temperature
in the vehicle. The defendant was subsequently indicted for criminally negligent homicide.

In response to his indictment, the defendant applied for pretrial diversion. The defendant’s
application indicates that he has no prior criminal record; holds a college degree and is seeking a
Masters of Divinity degree; taught in the public school system from 2001 to 2003, leaving to take
his current position; is in excellent physical health; is married and emotionally stable with significant
support from his extended family and community; has an “excellent reputation within the
community”; and is “amenable to any conditions imposed during the diversion period.” The
defendant’s application was accompanied by nineteen letters of support from family, friends, co-
workers, and students, including an eloquent letter of support from his wife, Mia’s mother.

The district attorney general’s office denied the defendant’s application for pretrial diversion.
The written denial sets forth without discussion four factors favoring diversion: the defendant’s
employment “at the same job for seven years,” the defendant’s college degree, his lack of a prior
criminal record, and the “numerous letters of support.” The denial also sets forth four factors
supporting denial of pretrial diversion: the defendant’s negligence in failing to remove his daughter
from his car on a hot summer day, thereby causing her death; the seriousness of the offense; the
“need to deter crimes such as these,” citing the deaths of almost one hundred children across the
nation from being left in “hot vehicles”; and that the grant of diversion to the defendant would “lead
the public to believe that crimes that involve death are treated lightly by the criminal justice system.”
Significantly, in assessing the seriousness of the offense, the assistant district attorney general who
authored the written denial wrote,

Even though this class of crime is divertible, it appears to be an aberration of the law.
Other crimes involving death that were once divertible have been removed by
legislation from consideration. These are voluntary manslaughter and vehicular
homicide involving intoxication. Also, Aggravated Assault involving serious bodily
injury has been removed from consideration for pretrial diversion by legislation.
Certainly, the type of crime and the fact that it involved a death weigh heavily against
the defendant’s application for pretrial diversion.

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The written denial concludes:

After weighing and considering all the factors both for and against the
defendant’s application for pretrial diversion as outlined above, this office has
reached the following conclusion. The positive aspects of the defendant’s application
for pretrial diversion when weighed against the negative aspects of this application
indicate that this office should not grant the defendant’s application for pretrial
diversion. Having considered and weighed all of the aspects of this application, both
positive and negative, this office must respectfully deny the defendant’s application
for pretrial diversion.

Upon the denial of his request for pretrial diversion, the defendant petitioned the trial court
for a writ of certiorari. The defendant contended that the prosecutor abused his discretion in refusing
to grant his application for pretrial diversion. The trial court disagreed and denied the defendant’s
request for relief. Thereafter, the defendant applied to the trial court for permission to pursue an
interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court denied
the defendant’s application. The defendant then applied to the Court of Criminal Appeals for
permission to pursue an extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10.
The Court of Criminal Appeals denied the defendant’s application.2 The defendant then sought
review by this Court. We granted the defendant’s application for extraordinary appeal in order to
(1) determine the effect of a district attorney general’s consideration of an irrelevant factor in
deciding to deny pretrial diversion and (2) clarify when an interlocutory appeal from the denial of
pretrial diversion should be granted.

ANALYSIS

I. Prosecutor’s Duty upon Pretrial Diversion Application

The pretrial diversion statute permits a district attorney general to suspend his or her
prosecution of a qualified defendant for a period of up to two years. See Tenn. Code Ann. § 40-15-
105(a)(1)(A) (Supp. 2004). Only a narrow class of defendants is eligible for pretrial diversion. An
eligible defendant is one who has not previously been granted diversion, does not have a
disqualifying prior conviction, and is seeking pretrial diversion for an offense that is not a Class A
or Class B felony, certain Class C felonies, a sexual offense, driving under the influence, or vehicular
assault. See id. at (a)(1)(B)(i); State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002).

A statutorily eligible defendant is not presumptively entitled to diversion. State v. Curry, 988
S.W.2d 153, 157 (Tenn. 1999). Rather, the district attorney general has the sole discretion to
determine whether to grant pretrial diversion to one who meets the strict statutory requirements.
Bell, 69 S.W.3d at 176 (citing Curry, 988 S.W.2d at 157; State v. Pinkham, 955 S.W.2d 956, 959

2
The defendant actually applied twice to the Court of Criminal Appeals for permission to pursue an
extraordinary appeal. The intermediate appellate court denied the application both times for the same reasons.

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(Tenn. 1997)). In determining whether to grant pretrial diversion, the district attorney general “has
a duty to exercise his or her discretion by focusing on a defendant’s amenability for correction and
by considering all of the relevant factors, including evidence that is favorable to a defendant.” Bell,
69 S.W.3d at 178 (emphases added); see also State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.
1983). Any factors tending to reflect accurately upon whether the applying defendant will or will
not become a repeat offender should be considered. Hammersley, 650 S.W.2d at 355.

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. The prosecutor may consider the need for general deterrence. See State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993). However, the circumstances of the offense and the need for
deterrence “cannot be given controlling weight unless they are ‘of such overwhelming significance
that they [necessarily] outweigh all other factors.’” Id. (quoting State v. Markham, 755 S.W.2d 850,
853 (Tenn. Crim. App. 1988)). This Court has recognized that “the responsibility placed upon
prosecutors to pick and choose among the lot [of applicants for pretrial diversion] based upon a
particular candidate’s amenability to rehabilitation or recidivism requires the exercise of unusual
powers of discrimination.” Hammersley, 650 S.W.2d at 353.

If the prosecutor denies the application, “the factors upon which the denial is based must be
clearly articulable and stated in the record.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989),
overruled in part on other grounds by State v. Yancey, 69 S.W.3d 553, 559 (Tenn. 2002). “This
requirement entails more than an abstract statement in the record that the district attorney general
has considered [all relevant] factors.” Id. Rather, “[i]f the district attorney general denies pretrial
diversion, that denial must be written and must include both an enumeration of the evidence that was
considered and a discussion of the factors considered and weight accorded each.” Pinkham, 955
S.W.2d at 960; see also Bell, 69 S.W.3d at 178 (reiterating that the district attorney general must not
only consider all relevant factors, including evidence favorable to the defendant, he or she must also
weigh each factor and must explain in writing how a decision to deny pretrial diversion was
determined). A district attorney general’s failure to consider and articulate all relevant factors
constitutes an abuse of discretion. Bell, 69 S.W.3d at 178; see also Curry, 988 S.W.2d at 159.

These cases make clear that a district attorney general is bound to consider and weigh all
relevant factors in determining whether to grant pretrial diversion. The obvious corollary to this
requirement is that the district attorney general must avoid relying upon irrelevant factors in denying
diversion. See State v. Thompson, 189 S.W.3d 260, 268 (Tenn. Crim. App. 2005) (holding that the
prosecutor abused his discretion in denying pretrial diversion where he “did not properly consider
all of the relevant factors, and did consider some irrelevant ones”); State v. Lane, 56 S.W.3d 20, 27
(Tenn. Crim. App. 2000) (district attorney general abused his discretion in denying pretrial diversion
because “off-duty acts that are unrelated to this defendant’s duties of public employment are not a
proper basis for imposing a higher standard of conduct and thereby justifying a denial of pretrial

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diversion”). In this case, the district attorney general’s office denied diversion in part based upon
its individual and irrelevant determination that criminally negligent homicide should not be a
divertible offense.

Our review of the assistant district attorney general’s written denial makes clear that he did
not focus on the defendant’s amenability to correction in determining whether to grant diversion but
rather on the nature and circumstances of the offense and its tragic consequence. Moreover, the
assistant district attorney general is apparently of the opinion that the legislature has erred by not
reclassifying criminally negligent homicide as an offense ineligible for pretrial diversion. The
assistant district attorney general described the legislature’s decision to make criminally negligent
homicide a divertible offense as “an aberration of the law.” He further declared that granting
diversion to defendants charged with negligent homicide would “lead the public to believe that
crimes that involve death are treated lightly by the criminal justice system.” The tone of the assistant
district attorney general’s written denial suggests that he will not grant pretrial diversion to any
defendant charged with criminally negligent homicide, regardless of the defendant’s personal
circumstances and amenability to correction.

In Hammersley, this Court was faced with a similar situation in which the district attorney
general had embraced a policy not to grant pretrial diversion where the defendant was charged with
what was, in the district attorney general’s view, a “serious” crime. In that case, the defendant had
been charged with larceny, which the prosecutor testified was “a serious crime” in the subject
county. The prosecutor admitted that he denied pretrial diversion to the defendant “based upon the
seriousness of the crime itself.” 650 S.W.2d at 356. This Court held that the prosecutor “was
obviously in error in undertaking to apply a local policy contrary to or different from that provided
by state law” and that the prosecutor’s action was “contrary to the policies formulated in the Pretrial
Diversion Act.” Id. We draw the same conclusion here.

Contrary to established precedent, the assistant district attorney general in this case 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. In so doing, the assistant district attorney general considered a
factor not relevant to his determination of whether to grant pretrial diversion to the defendant in this
matter. The prosecutor’s consideration of, and emphasis upon, an irrelevant factor so tainted his
decision-making process as to constitute an abuse of discretion.

II. Trial Court’s Review of Prosecutor’s Decision

Where the prosecutor denies a defendant’s application for pretrial diversion, the defendant
may petition the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3) (Supp. 2004).
The prosecutor’s decision is “presumptively correct,” Curry, 988 S.W.2d at 158, and, on review, the
trial court is limited to examining only the evidence considered by the district attorney general and
must determine thereupon whether the prosecutor has abused his or her discretion, Bell, 69 S.W.3d
at 177. That is, “the trial court should examine each relevant factor in the pretrial diversion process

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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.” Yancey,
69 S.W.3d at 559. The trial court must focus on the prosecutor’s methodology rather than the
intrinsic correctness of his or her decision, and the trial court should therefore not engage in re-
weighing the evidence considered by the district attorney general. Id. at 558-59. If 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 of the factors relevant to the pretrial diversion determination. Bell,
69 S.W.3d at 180.3

In this case, the trial court noted the assistant district attorney general’s explicit opinion that
criminally negligent homicide should not be a divertible offense and stated that it was “probably
inappropriate and should not be a consideration in this process.”4 Nevertheless, the trial judge
concluded that he did not think “that the inclusion of that statement necessarily nullifies the
decision” and determined that the assistant district attorney general did not abuse his discretion in
denying pretrial diversion.5 As set forth above, we disagree. The trial court should have instructed
the assistant district attorney general that he had taken an irrelevant factor into consideration and that
he had failed to focus his analysis on the proper issue. That is, the trial court should have recognized
that the assistant district attorney general had abused his discretion in evaluating the defendant’s
application. Thereupon, the trial court should have reversed the prosecutor’s decision and remanded
the matter of the defendant’s diversion application for further consideration.6 See Bell, 69 S.W.3d
at 179.

3
If the trial court determines that the district attorney general has considered all relevant factors, and no
irrelevant ones, and has nonetheless committed an abuse of discretion in denying diversion, the trial court may order the
prosecutor to place the defendant on pretrial diversion. See Tenn. Code Ann. § 40-15-105(b)(3) (Supp. 2004).

4
The State concedes in its brief to this Court that “it is not appropriate for a [district attorney general] to
comment on or give any weight to the fact that other offenses involving death or serious bodily injury have been removed
from the eligible class of offenses.”

5
Upon the defendant’s petition for writ of certiorari, the trial court convened a hearing not to take evidence but
to hear argument. During this hearing, the trial court questioned the State’s attorney about his colleague’s criticism of
the legislature’s decision to make criminally negligent homicide a divertible offense. As we noted in Bell, however, this
Court has “rejected a proposed remedy that would allow the district attorney general to testify as to the reasons for
denying diversion before the trial court.” 69 S.W .3d at 179 n.6 (citing Curry, 988 S.W .2d at 160).

6
That there may be substantial evidence to support the denial of pretrial diversion upon a proper consideration
of all relevant factors, does not permit the district attorney general to short-circuit the analytical process. As we noted
in Bell, “a court cannot reasonably conclude that there is substantial evidence to support the district attorney general’s
decision if in fact the district attorney general has not first considered all of the relevant factors and their relative weight.”
69 S.W.3d at 179 (emphases added).

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 III. Grounds for Appeal

A. Rule 9 Interlocutory Appeal

We turn now to examining the procedural history by which this case has reached us.
Unsuccessful in having the prosecutor’s decision to deny pretrial diversion overturned, the defendant
sought relief by applying to the trial court for permission to seek an interlocutory appeal pursuant
to Tennessee Rule of Appellate Procedure 9. In determining whether to grant a Rule 9 application,
a trial court should consider, among other things,

(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 the final judgment.

Tenn. R. App. P. 9(a). In this case, the defendant sought Rule 9 appellate review on the bases that
it would prevent needless, expensive, and protracted litigation, and on the need to establish a uniform
body of law on the issue. The trial court denied the defendant’s application upon its determination
that
a Rule 9 appeal is not necessary to avoid irreparable injury to the defendant. The
normal avenues of litigation and appeal of these issues are still available to the
defendant. The granting of a Rule 9 appeal would not prevent needless expense and
protracted litigation given all the circumstances of this case. And, there already
exists a uniform body of law, in this Court’s opinion, which would uphold the
decision of the Attorney General in denying diversion. In other words, it [is] this
Court’s opinion, that no extraordinary circumstances exist pursuant to Rule 9(a) that
would warrant the granting of this Interlocutory Appeal.

We recognize, of course, that “[i]nterlocutory appeals to review pretrial orders or rulings are
generally ‘disfavored,’ especially in criminal cases.” Reid v. State, 197 S.W.3d 694, 699 (Tenn.
2006) (quoting State v. Gilley, 173 S.W.3d 1, 5 (Tenn. 2005)). As the text of Rule 9 makes clear,
however, an interlocutory appeal should be granted where it will “result in a net reduction in the
duration and expense of the litigation if the challenged order is reversed.” Tenn. R. App. P. 9(a)(2).
In this case, the challenged order was the trial court’s denial of the defendant’s petition for writ of
certiorari seeking reversal of the district attorney general’s denial of his application for pretrial
diversion. Given the assistant district attorney general’s disregard for this Court’s guidelines
concerning the proper factors to consider in evaluating applications for pretrial diversion, the

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probability that the trial court’s order would be reversed was high. Upon reversal, if the defendant
was subsequently placed on pretrial diversion, the necessity of a trial on the defendant’s indictment
would be avoided.7 Clearly, Tennessee’s criminal justice system will experience a net reduction in
the duration and expense of the litigation commenced upon the defendant’s indictment if the State
of Tennessee does not have to try him. Finally, the grant of an interlocutory appeal under the
circumstances of this case does not create the risk of piecemeal appellate litigation or delayed justice.
Cf. Gilley, 173 S.W.3d at 5 (citing United States v. MacDonald, 435 U.S. 850, 853-54 (1978)).

We do not mean by this that every defendant who is denied pretrial diversion by the district
attorney general and then denied relief by the trial court should be granted a Rule 9 appeal. In this
case, however, the assistant district attorney general’s consideration of a clearly irrelevant factor, and
his focus on the nature and circumstances of the offense rather than the defendant’s amenability to
correction, created an issue appropriate for interlocutory appeal. In addition, at the time of this
defendant’s application for interlocutory appeal pursuant to Rule 9, there existed a need to develop
a uniform body of law regarding a prosecutor’s consideration of factors that are irrelevant to his or
her determination of whether to grant pretrial diversion. Accordingly, the particular circumstances
of this case warranted a grant by the trial court of the defendant’s Rule 9 application for interlocutory
appeal.

B. Rule 10 Extraordinary Appeal

When the trial court refused to grant an interlocutory appeal, the defendant applied to the
Court of Criminal Appeals for an extraordinary appeal pursuant to Tennessee Rule of Appellate
Procedure 10, which provides that

[a]n extraordinary appeal may be sought on application and in the discretion of the
appellate court alone of interlocutory orders of a lower court from which an appeal
lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the
lower court has so far departed from the accepted and usual course of judicial
proceedings as to require immediate review, or (2) if necessary for complete
determination of the action on appeal as otherwise provided in these rules.

Tenn. R. App. P. 10(a). This Court has stated that a Rule 10 extraordinary appeal will lie whenever
the prerequisites for common law certiorari exist: the court’s ruling represents a fundamental
illegality, the ruling fails to proceed according to the essential requirements of the law, the ruling is
tantamount to the denial of a party’s day in court, the trial court’s action is without legal authority,
the action of the trial court constitutes a plain and palpable abuse of discretion, or either party has
lost a right or interest that may never be recaptured. State v. Willoughby, 594 S.W.2d 388, 392
(Tenn. 1980).

7
Of course, a trial could become necessary later if the defendant violated the terms of his diversion and the
district attorney general’s office terminated the memorandum of understanding. See Tenn. Code Ann. § 40-15-105(d)
(Supp. 2004).

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 Prior to July 1, 1997, interlocutory appeal under Tennessee Rules of Appellate Procedure 9
or 10 was the only means of attempting to overturn a trial court’s decision to affirm a district attorney
general’s denial of pretrial diversion. A defendant who disagreed with the decision of the prosecutor
or the trial court was required to pursue an interlocutory appeal in order to challenge that decision.
If the defendant failed to seek interlocutory relief and was thereafter convicted, he or she was deemed
to have waived the right to challenge the denial of pretrial diversion on direct appeal. See State v.
Mecord, 815 S.W.2d 218, 219 (Tenn. Crim. App. 1991). Effective July 1, 1997, however, Tennessee
Rule of Criminal Procedure 38 was amended to permit a defendant to appeal his or denial of pretrial
diversion after conviction as well as before. Specifically, Rule 38 now provides that, where a
defendant is unsuccessful in having the trial court reverse the prosecutor’s denial of pretrial
diversion,

the defendant may pursue an interlocutory appeal . . . pursuant to either Rule 9 or
Rule 10 of the Tennessee Rules of Appellate Procedure. . . . If the defendant does not
pursue an interlocutory appeal of the denial of a writ of certiorari, the defendant may
appeal the denial pursuant to Rule 3(b), Tennessee Rule[s] of Appellate Procedure,
following the entry of the final judgment in the trial court.

Tenn. R. Crim. P. 38 (b). Thus, a defendant denied pretrial diversion may still seek an interlocutory
appeal but will not be deemed to have waived the issue if he or she waits until after conviction to
appeal.

We recognize, of course, that Rule 38 does not expressly state that if the defendant does
pursue an interlocutory appeal, the trial court and the Court of Criminal Appeals shall grant the
defendant’s Rule 9 or Rule 10 application. In 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. As we noted in Willoughby, a Rule 10 extraordinary appeal should be granted in
cases where a defendant may otherwise lose a right or interest that may never be recaptured. Such
an interest is clearly at stake in the pretrial quest for pretrial diversion. As one of this Court’s
previous chief justices recognized nearly thirty years ago,

[t]he self-evident purpose of pre-trial diversion is to spare appropriately
selected first offenders the stigma, embarrassment and expense of trial and the
collateral consequences of a criminal conviction. The result contemplated is the
restoration of successful divertees to useful and productive citizenship. This is a
legitimate and praiseworthy objective and one that has now become the public policy
of the State.

Pace v. State, 566 S.W.2d 861, 868 (Tenn. 1978) (Henry, C.J., concurring). Once tried, a defendant
can never recapture his or her interest in being spared the attendant “stigma, embarrassment and
expense.”

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 The State, too, secures benefits upon the pretrial grant of pretrial diversion that may
otherwise be lost. The State and its witnesses are saved the time, expense, and delay of further
prosecution. Judicial and prosecutorial resources are conserved. The terms of the diversion will help
to ensure the defendant’s speedy return to law-abiding behavior.

In short, the benefits of successfully diverting a case prior to trial are significant and will be
lost upon the denial of an interlocutory appeal. That outcome generally should not occur, especially
whereSas it does hereSthe record makes obvious that the prosecutor abused his or her discretion in
evaluating the defendant’s application.

In this case, the Court of Criminal Appeals twice denied the defendant’s Rule 10 application,
ruling the second time:

The Defendant incorrectly maintains that the failure to grant an extraordinary appeal
will deny meaningful consideration of his application for pretrial diversion. The
Defendant is not precluded from appellate review. Should the Defendant be
convicted, he will be able to dispute the denial on direct appeal. See Tenn. R. Crim.
[P.] 38; State v. Yancey, 59 S.W.3d 553, 556 (Tenn. 2002). Moreover, this Court is
not inclined to expand the boundaries for granting extraordinary appeals as
prescribed by Rule 10, Tennessee Rules of Appellate Procedure.

Thus, in determining to deny the defendant’s Rule 10 application, the Court of Criminal Appeals
appears to have relied on the defendant’s ability under Rule 38 to pursue a direct appeal on the denial
of pretrial diversion in the event he was convicted.

Nothing in the amended text of Tennessee Rule of Criminal Procedure 38, or in the text of
the Advisory Commission Comments thereto, indicates that the amendment to Rule 38 was adopted
in order to limit or discourage interlocutory appeals from pretrial diversion decisions. Indeed, Rule
38 continues to acknowledge specifically a defendant’s right to pursue such appeals. As amended,
Rule 38 simply gives an unsuccessful defendant another avenue to pursue after trial if, for whatever
reason, he or she chooses to forego the interlocutory route. See Tenn. R. Crim. P. 38(b)(2). If, for
instance, a defendant is optimistic about an acquittal, he or she may decide not to pursue an
interlocutory appeal. Under our current Rule 38, a direct appeal is now available if the defendant’s
optimism proves misplaced. The reviewing court on direct appeal is still permitted to consider only
those matters considered by the district attorney general and not facts subsequently elicited at trial.
See Yancey, 69 S.W.3d at 558. Accordingly, the Court of Criminal Appeals should not deny a Rule
9 or 10 application from a denial of pretrial diversion simply on the basis that the defendant may
pursue a direct appeal upon conviction.

We conclude, therefore, that the Court of Criminal Appeals would have been justified in
granting the defendant’s Rule 10 application for extraordinary appeal. Our review of the record
indicates a clear abuse of discretion by the prosecutor in evaluating the defendant’s application for
pretrial diversion and further indicates the trial court’s appropriate concern over the methodology

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utilized by the prosecutor. Given the unique nature of pretrial diversion and the oft-repeated
mandates issued by this Court concerning the evaluation of applications therefor, an extraordinary
appeal in this case was warranted.

CONCLUSION

The trial court’s order affirming the denial of pretrial diversion is reversed. This matter is
remanded for further proceedings consistent with this opinion. Specifically, the trial court shall
reverse the decision of the district attorney general’s office denying pretrial diversion and remand
this matter for a proper evaluation of the defendant’s application. The costs of this cause are
assessed against the State of Tennessee, for which execution may issue if necessary.

_________________________________
CORNELIA A. CLARK, JUSTICE

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