IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 3, 2001 Session
STATE OF TENNESSEE v. JERRY W. YANCEY, JR.
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Williamson County
No. II-499-120 Timothy L. Easter, Judge
No. M1999-02131-SC-R11-CD - Filed February 7, 2002
We granted this appeal to determine the following issues: (1) whether the Court of Criminal
Appeals, in reviewing the denial of pretrial diversion, erred by considering evidence presented at trial
and failing to limit its review to evidence considered by the district attorney general; and (2) whether
the trial court applied the correct standard in reviewing the district attorney general’s denial of
pretrial diversion pursuant to a petition for writ of certiorari.
After a thorough review of the record and relevant authority, we hold that in reviewing the
denial of pretrial diversion, the Court of Criminal Appeals erred in failing to limit its review to the
evidence that was considered by the district attorney general and any factual disputes resolved by
the trial court. We also hold that in considering the petition for writ of certiorari, the trial court failed
to apply the proper standard of review, which requires that it determine whether the district attorney
general has considered and weighed all of the relevant factors and whether there is substantial
evidence to support the district attorney general’s decision. Accordingly, the judgment of the Court
of Criminal Appeals is reversed, and this case is remanded to the trial court to apply the appropriate
standard of review.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed; Remanded to Trial Court
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined. JANICE M. HOLDER , J., filed a
dissenting opinion.
John S. Colley, III, Columbia, Tennessee, for the appellant, Jerry W. Yancey, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth
T. Ryan, Assistant Attorney General; Jennifer L. Bledsoe, Assistant Attorney General; Sharon Tyler,
Assistant District Attorney; and Robert S. Hassell, Assistant District Attorney, for the appellee, State
of Tennessee.
OPINION
BACKGROUND
The defendant, Jerry W. Yancey, Jr., was charged in an indictment with two counts of
aggravated assault and three counts of felony reckless endangerment. When Yancey applied for
pretrial diversion, the district attorney general considered the following evidence.
On January 29, 1999, Teresa Lovett was driving a Pontiac Grand Prix northbound in the left
lane on Interstate 65 in Williamson County, Tennessee. Sandra Martin was a passenger in Lovett’s
car. Yancey, along with his wife, his brother, and another passenger, was driving a Jeep northbound
on Interstate 65 behind Lovett’s car. Yancey’s vehicle was hauling a trailer containing 1800 to 2000
pounds of material.
At approximately 6:30 a.m., Yancey approached Lovett’s car from the rear in the left lane.
When Lovett slowed down, Yancey remained right behind her back bumper. Yancey moved to the
right lane, pulled along side of Lovett’s car, and made a profane gesture. Lovett returned the gesture.
When Lovett accelerated, Yancey pulled into the left lane behind Lovett’s car and turned on his high
beam headlights. When Lovett remained in the left lane, Yancey again drove into the right lane
along side of Lovett’s car. This time Yancey pulled a Colt .45 caliber handgun and pointed it at
Lovett’s car. Sandra Martin ducked down in the passenger seat. Lovett accelerated and immediately
heard a gunshot.
Yancey was apprehended by police later the same day and was interviewed by Detective
David Beard from the Williamson County Sheriff’s Department. Yancey stated that he was driving
between 70 and 75 miles per hour when he approached Lovett’s car in the left lane, which he
estimated was going 58 to 64 miles per hour. When Yancey flashed his lights, the driver of the other
car “slammed” on the brakes and “flipped him off.” Yancey said that the driver of the vehicle would
not let him pass and that this went on for several miles. Yancey told officers that he tried to take a
picture of the other car with a camera.1 Although Yancey admitted that he fired one shot with his
handgun, he maintained that he fired in the air and was not trying to hit the other vehicle. Michael
Yancey, the defendant’s brother, told officers that he had thrown a shell casing out of the car at the
defendant’s direction after the defendant had fired the gun.
According to the pretrial diversion application, Yancey was 34 years old and married.
Yancey has two children, and his wife was pregnant at the time of the offenses in question. Yancey
has his G.E.D. and is self-employed as a contractor. He has a prior conviction for reckless driving
1
The passengers in the defendant’s car, including his wife and brother, told officers that the driver of
the other vehicle was driving slow and would spee d up w henever the defen dant tried to pass it. The defendan t’s wife
also told an officer that the defendant had used a camera to try to take a picture of the other vehicle.
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in 1996. Yancey’s mental and physical conditions were normal, although he was attending weekly
sessions for control of stress.
The district attorney general’s letter of denial indicated that he considered the facts and
circumstances of the offense, including the grave danger created to the victims and numerous other
drivers on the busy interstate highway, and found that they did not favor pretrial diversion. The
denial letter revealed that the district attorney general considered the defendant’s social history,
which he found to be neutral, and the defendant’s criminal history, which he found to be “neutral -
at best.” The district attorney general considered the defendant’s physical and mental condition, but
found that neither played a significant part in his decision to deny pretrial diversion. Finally, in
concluding that pretrial diversion would not meet the ends of justice, the district attorney general
cited the defendant’s prior conviction, his effort to conceal the facts of the offenses, his failure to
take complete responsibility for his actions, and the need for deterring the defendant and others from
committing similar crimes in the future.
The defendant appealed the denial of pretrial diversion by filing a petition for a writ of
certiorari, which was denied by the trial court following a hearing. The defendant’s motion for an
interlocutory appeal to review the denial of diversion was denied by the trial court and the Court of
Criminal Appeals. In denying the interlocutory appeal, the Court of Criminal Appeals concluded
that the defendant may challenge the denial of pretrial diversion on direct appeal following a
conviction. See Tenn. R. Crim. P. 38 (“In the event that the defendant does not pursue an
interlocutory appeal, the defendant shall have the right to appeal the decision of the trial court
denying the petition for writ of certiorari pursuant to Tennessee Rule of Appellate Procedure 3(b)
following the entry of the final judgment in the trial court.”).
At trial, the defendant was convicted of two counts of aggravated assault and two counts of
felony reckless endangerment.2 On appeal, the Court of Criminal Appeals considered evidence
presented at both the certiorari hearing for pretrial diversion and the subsequent trial, and it
concluded that the record supported the trial court’s finding that the district attorney general did not
abuse his discretion in denying pretrial diversion.
The defendant sought permission to appeal arguing that the Court of Criminal Appeals erred
in failing to limit its review to the evidence that was considered by the district attorney general and
that the trial court failed to weigh and make specific findings regarding each relevant factor
considered by the district attorney general under this Court’s decision in State v. Herron, 767 S.W.2d
151, 156 (Tenn. 1989). The State concedes that the Court of Criminal Appeals erred in considering
evidence from the trial and failing to limit its review to the evidence that was considered by the
district attorney general. The State argues, however, that the trial court applied the proper standard
of review and that the evidence in the record supports the trial court’s ruling upholding the district
attorney general’s denial of pretrial diversion.
2
The defendant was later given an effective sentence of three and one-half (3½) years in prison. The
sentence was suspended after service of sixty (60) days, and the defendant was placed on probation for four (4) years.
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We granted the defendant’s application for permission to appeal to address these issues.
ANALYSIS
The pretrial diversion statute, which was enacted by the state legislature, permits the district
attorney general to suspend a prosecution against a qualified defendant for a period of up to two
years. See Tenn. Code Ann. § 40-15-105(a)(1)(A) (1997 & Supp. 2001). Pretrial diversion is
available only to a narrow class of defendants who have not previously been granted diversion; who
do not have a prior misdemeanor conviction for which confinement was served; who do not have
a prior felony conviction within a five-year period after completing the sentence or probationary
period for the conviction; and who are charged with a crime other than a class A felony, a class B
felony, a sexual offense, driving under the influence, or vehicular assault. See Tenn. Code Ann.
§ 40-15-105(a)(1)(B)(i)(a)-(c) (Supp. 2001).
A person who is statutorily eligible for pretrial diversion is not presumptively entitled to
diversion. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the district attorney general
has the discretion to determine whether to grant pretrial diversion to one who meets the strict
statutory requirements. See id.; State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997). In
considering pretrial diversion, it is well-settled that the district attorney general must consider the
following:
When deciding whether to enter into a memorandum of
understanding under the pretrial diversion statute a prosecutor should
focus on the defendant’s amenability to correction. Any factors
which tend to accurately reflect whether a particular defendant will
or will not become a repeat offender should be considered. Such
factors must, of course, be clearly articulable and stated in the record
in order that meaningful appellate review may be had. 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. Pinkham, 955 S.W.2d at 959-60 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.
1983)). In cases where the district attorney general denies an application for pretrial diversion, the
denial must be in writing and must discuss the factors considered and the weight accorded to each
factor. State v. Curry, 988 S.W.2d at 157; see also State v. Bell, ____ S.W.3d ____ (Tenn. 2002).
If an application for pretrial diversion is denied by the district attorney general, the defendant
may appeal to the trial court. Tenn. Code Ann. § 40-15-105(b)(3) (1997 & Supp. 2001). On
certiorari review, the trial court is limited to considering the record as it existed before the district
attorney general. See State v. Curry, 988 S.W.2d at 157. The trial court may only conduct a hearing
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to resolve any factual disputes raised by the district attorney general or the defendant. Id. at 157-58.
In deciding whether the district attorney general has abused his or her discretion, the trial court must
determine whether the district attorney general has considered all of the relevant factors and whether
there is substantial evidence to support the district attorney general’s findings with respect to the
denial of pretrial diversion. Id.3
Review of Evidence by Appellate Court
The defendant argues, and the State concedes, that the Court of Criminal Appeals erred by
considering evidence presented at the trial on the merits of the offenses charged, in addition to that
considered by the district attorney general. We made it clear in Curry that a trial court is limited to
considering only the evidence considered by the district attorney general and to resolving any factual
disputes raised by the parties. See State v. Curry, 988 S.W.2d at 157 (citation omitted); see also
State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).
In concluding that it must examine the evidence presented at trial, the Court of Criminal
Appeals cited this Court’s decision in State v. Henning, in which this Court said that when
“evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts
may consider the proof adduced both at the suppression hearing and at the trial.” 975 S.W.2d 290,
299 (Tenn. 1998). Our decision in Henning is not applicable to the review of a trial court’s ruling
on a pretrial diversion matter, which is governed by the narrow procedures of certiorari review as
outlined above. Indeed, review of the evidence presented after the district attorney general’s
determination inherently conflicts with the applicable standard of review. Therefore, as the parties
agree, the Court of Criminal Appeals erred by considering evidence presented at trial.
Standard of Review by Trial Court
The defendant, relying on this Court’s decision in State v. Herron, 767 S.W.2d 151 (Tenn.
1989), next contends that the trial court failed to adhere to the same balancing procedure required
of the district attorney general when assessing a defendant’s suitability for pretrial diversion and that
the trial court’s failure to set out specific findings of fact is an error requiring this Court to order
pretrial diversion. The State argues that where the trial court fails to apply the appropriate standard
of review in determining whether the district attorney general abused his or her discretion in denying
diversion, the remedy is a remand to the trial court for appropriate proceedings and not a grant of
diversion. The State further argues that a remand is not necessary in this case because the trial court
3
W e disagree with the dissenting view that the district attorney general’s failure to consider all of the
relevant factors, including evidence favorab le to a defendant, is of no concern so long as the reasons cited by the district
attorney general are sufficient to support a denial of diversion. Such a view is contrary to the requirement that district
attorney generals “properly exercise” their discretion by considering all of the relevant factors, including a defendant’s
am enability to correctio n. State v. Ham mersley, 650 S.W.2d at 353. Moreover, it is the consideration of all of the
relevant factors that ensures the district attorney general will identify suitable can didates for p retrial div ersion and fulfill
the leg islative p urpose of the statu te. See State v . Bell, ___ S.W.3d at ___ .
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properly found that the district attorney general did not abuse his discretion in denying pretrial
diversion.
In reviewing this issue, we first clarify that a writ of certiorari is available to review the
actions of administrative tribunals and to review the denial of pretrial diversion. See Ben H.
Cantrell, Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. L. Rev.
19, 20 (1973); Tenn. Code Ann. § 40-15-105(b)(3) (1997 & Supp. 2001). A writ of certiorari to
review the grant or denial of pretrial diversion requires that the trial court review the method used
by the district attorney general, but not the intrinsic correctness of the decision. See Review of
Administrative Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. L. Rev. at 28; Arnold v.
Tennessee Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997). In reviewing the district attorney
general’s decision, therefore, the trial court must not re-weigh the evidence, but must consider
whether the district attorney general has weighed and considered all of the relevant factors and
whether there is substantial evidence in the record to support the district attorney general’s reasons
for denying diversion. See Review of Administrative Decisions by Writ of Certiorari in Tennessee,
4 Mem. St. L. Rev. at 30; see also State v. Bell, ____ S.W.3d at ___.
In State v. Herron, this Court addressed whether the trial court erred by affirming the district
attorney general’s denial of pretrial diversion. We stated:
The trial judge must also adhere to the same balancing procedure
[used by the district attorney general], which must be followed on a
case-by-case basis, assigning due significance to all relevant factors,
and set out in findings of fact and/or his order affirming or reversing
the prosecutors decision. It is only thus that meaningful appellate
review may be had and the likelihood sustained that pretrial diversion
will serve the ends of justice and the best interest of both the public
and the defendant.
767 S.W.2d at 156. This statement in Herron was meant to clarify that the 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. To the extent that this language in Herron, or any
other case, indicates that the trial court must conduct the same balancing procedure that a district
attorney general must undertake and re-weigh the district attorney general’s decision, it is overruled
for conflicting with the very nature of certiorari review.
Now that we have clarified the proper standard of review on writ of certiorari, we turn to the
facts of this case. At the certiorari hearing in this case, the trial court stated:
I do not find evidence that the State has grossly or patently abused its
discretion in this case given the nature of this case and the facts or at
least the facts that have been reported and supported by your client’s
statement. This does seem to be a case where the circumstances of
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the crime and the need for deterrence outweigh any other relative
factors that would justify pretrial diversion. And I find therefore that
the State has not abused its discretion in this case and deny the
motion for certiorari in this case.
These findings are ambiguous as to the standard applied by the trial court. It appears initially that
the trial court properly applied the abuse of discretion standard of review. The trial court, however,
recites only two of the factors in the context of “outweigh[ing] any other” factors. The trial court
does not state whether the district attorney general considered all of the relevant factors or whether
the district attorney general’s findings were supported by substantial evidence. Therefore, we
conclude that this case should be remanded to the trial court for application of the proper standard
of review.
CONCLUSION
We hold that upon review of a denial or grant of pretrial diversion, the Court of Criminal
Appeals is limited to considering only the evidence that was considered by the district attorney
general. Furthermore, we hold that a trial court must determine whether the district attorney general
has considered and weighed the evidence relevant to each factor and whether there is substantial
evidence to support the district attorney general’s decision to deny pretrial diversion. Therefore, the
judgment of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court
to apply the appropriate standard of review.
The costs of this appeal are taxed to the State of Tennessee.
___________________________________
E. RILEY ANDERSON, JUSTICE
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