IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT DYERSBURG)
FILED
March 8, 1999
FOR PUBLICATION Crowson, Jr.
Cecil
Appellate Court Clerk
Filed: March 8, 1999
STATE OF TENNESSEE, )
) CARROLL CRIMINAL
Appellee, )
)
)
Vs. ) HON. C. CREED MCGINLEY,
) JUDGE
)
CAROLYN L. CURRY )
) NO. 02-S-01-9709-CC-00079
Appellant. )
For Appellant: For Appellee:
Donald E. Parish John Knox Walkup
IVEY, PARISH & JOHNS Attorney General & Reporter
Huntingdon, Tennessee
Michael E. Moore
Solicitor General
Timothy F. Behan
Assistant Attorney General
Nashville, Tennessee
At Trial:
Robert Radford
District Attorney General
Eleanor Cahill
Assistant District Attorney General
Huntingdon, Tennessee
OPINION
COURT OF CRIMINAL APPEALS
REVERSED; JUDGMENT OF THE
TRIAL COURT REINSTATED. ANDERSON, C.J
We granted this appeal to determine whether the trial court properly ruled
that the prosecution abused its discretion by failing to consider all of the relevant
factors in denying the defendant’s application for pretrial diversion, and whether the
Court of Criminal Appeals erred in remanding the case for an evidentiary hearing. 1
The Court of Criminal Appeals agreed that the prosecutor’s written letter denying
diversion did not discuss all of the relevant factors, but remanded for an evidentiary
hearing to allow the prosecutor to testify as to the factors that were considered in
denying pretrial diversion.
After reviewing the record and controlling authority, we conclude that the trial
court properly determined that the prosecution abused its discretion by failing to
consider all of the relevant factors before denying pretrial diversion. We also
conclude that the Court of Criminal Appeals erred in remanding the case to allow
the prosecutor an opportunity to correct these deficiencies during an evidentiary
hearing. Accordingly, we reverse the Court of Criminal Appeals’ judgment and
reinstate the judgment of the trial court.
BACKGROUND
The defendant, Carolyn C. Curry, worked as an assistant clerk for the City of
McKenzie, Tennessee, from 1985 to 1995. Over a two-year period from July of
1993 to July of 1995, Curry embezzled over $27,000 from the City. She later was
indicted for theft of property valued between $10,000 and $60,000.
Curry applied for pretrial diversion. According to her application, she was a
divorced, 34-year-old mother of three children, ages 19, 13, and 8. Curry had
graduated from college with honors in 1983, and she served in the Tennessee
National Guard from 1983 to 1990, when she was honorably discharged. She was
an active member of her church and numerous charitable and community
1
Ora l argu me nt wa s hea rd in th is cas e on M arch 4, 19 98, in Dyers burg , Dyer Cou nty,
Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for Students)
project.
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organizations including the United Way, United Neighbors, Concerned Citizens, and
youth softball. Numerous letters included with her application attested to her
charitable and community involvement.
Curry had no prior arrests or convictions. She cooperated with authorities in
this case when her actions were discovered, admitting that she took money for
family and living expenses and proposing a restitution program. She stated that: “I
sincerely regret my actions and regret the shame that my actions have brought to
bear on myself and my family.”
In denying the application for pretrial diversion, the prosecutor, in a written
response, gave the following reasons:
We are in receipt of your application for pre-trial
diversion . . . . We have carefully reviewed the
application and the attached letters.
...
During a period of approximately two years, from
July 1, 1993, through July 11, 1995, approximately
$27,368.73 in city funds were embezzled by her. This
was not a one time embezzlement or theft, but a
complicated, well-thought out criminal scheme to take
money from the City of McKenzie.
...
We have considered the defendant’s past history
and her conduct for two years in defrauding the City of
McKenzie. This was a calculated criminal scheme that
took planning and thought. It manifests a criminal intent
for a long period of time and not something that
happened at once.
We cannot believe that it would be in the best
interests of the public, the defendant, and justice to
overlook a criminal scheme of this proportion and grant
pre-trial diversion . . . .
Curry sought review of the prosecutor’s decision by filing a petition for writ of
certiorari in the trial court. After hearing argument of counsel, the trial court found
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that diversion had been denied solely based upon the circumstances of the offense,
specifically, the two-year duration, and ruled:
After considering the Application for Pre-Trial
Diversion of the Defendant, the letter response from the
office of the District Attorney General . . ., and arguments
of counsel, the Court found that the Office of the District
Attorney General had abused its discretion in denying
pre-trial diversion and that the Defendant should be
placed on pre-trial diversion. . . .
The trial court denied the State’s motion to reconsider but granted a motion for
interlocutory appeal.2 The Court of Criminal Appeals agreed that the response
denying pretrial diversion did not sufficiently state the relevant factors which had
been considered by the prosecutor, yet further held:
[T]he trial court should schedule an evidentiary hearing
and allow the district attorney general to testify in order to
fill in the gaps left by the letter. Only in this way can the
trial court have assurances that it is considering the
same evidence considered by the prosecutor in his or her
decision to deny pretrial diversion. Only in this way can it
determine whether the prosecutor abused his or her
discretion in denying diversion.
We granted the defendant’s application for permission to appeal to review the
sufficiency of the prosecutor’s written denial of diversion and the question of
permitting the prosecutor to correct its deficiencies by testifying in an evidentiary
hearing.
ANALYSIS
The pretrial diversion program, drafted and enacted by the Legislature, allows
the District Attorney General to suspend a prosecution against a qualified defendant
for a period of up to two years. Tenn. Code Ann. § 40-15-105(a)(1)(A)(1997 &
Supp. 1998). A qualified defendant pursuant to the statute is one who has not
2
The transcripts indicate that the trial court initially voiced its concern that the outcome be
consistent with an unrelated embezzlement case in which diversion had been granted. The court later
clarified, how ever, that it wa s applying th e contro lling standa rds to the f acts in this c ase.
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previously been granted diversion and does not have a prior misdemeanor
conviction for which confinement was served or a prior felony conviction within a five
year period after completing the sentence or probationary period for the conviction.
Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(b) (Supp. 1998). The offense for which
diversion is sought may not be a class A felony, a class B felony, a sexual offense,
driving under the influence, or vehicular assault. Tenn. Code Ann. § 40-15-
105(a)(1)(B)(i)(c) (Supp. 1998).
Any grant of diversion must be conditioned on one or more of the following
conditions: that the defendant not commit any criminal offense; that the defendant
refrain from activities, conduct, or associations related to the charge; that the
defendant receive rehabilitative treatment, counseling and education; that the
defendant make restitution to the victim; that the defendant pay court costs and the
costs of the diversion; and that the defendant abide by any other terms or conditions
as may be agreed upon. Tenn. Code Ann. § 40-15-105(a)(2)(A)-(H) (1997 & Supp.
1998). If the defendant violates a term or condition, the prosecution may terminate
diversion and resume the criminal prosecution. Tenn. Code Ann. § 40-15-105(d)
(1997 & Supp. 1998).
One who is statutorily eligible is not presumptively entitled to diversion.
Instead, whether to grant pretrial diversion to a qualified defendant who is statutorily
eligible is a determination that lies in the discretion of the district attorney general.
State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997). The relevant considerations for
the prosecutor are as follows:
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
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will serve the ends of justice and the best interest of both the public
and the defendant.
Id. at 959-60 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)).3
If the district attorney general denies pretrial diversion, the denial must be in
writing and must include “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. This “requirement entails more than an abstract statement in the
record that the district attorney general has considered these factors.” State v.
Herron, 767 S.W.2d 151, 156 (Tenn. 1989). Instead, the factors considered “must
be clearly articulable and stated in the record. . . .” Id.; see also State v.
Washington, 866 S.W.2d 950 (Tenn. 1993). That a defendant, obviously, bears the
burden of demonstrating suitability for diversion does not relieve the prosecutor’s
obligation to examine all of the relevant factors and to set forth the required findings.
E.g., Pinkham, 955 S.W.2d at 960.
The prosecutor’s response must be in writing. As the Court of Criminal
Appeals has observed, there are at least three reasons for requiring a written
response:
First, the statement would compel the prosecutor to think
about and justify his denial in terms of the applicable
standards. Second, the statement of reasons would
define the area of controversy at the evidentiary hearing.
Finally, the statement of reasons would restrict the
prosecutor to a particular rationale and insure that the
prosecutor would offer no new reasons at the evidentiary
hearing.
State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985) (quoting Steven W.
Feldman, The Tennessee Pretrial Diversion Act: A Practitioner’s Guide, 13 Mem. St.
U. L. Rev. 285, 302 n.106 (1983)). The prosecutor’s written response must also
3
The dissent, quoting only the last sentence of this passage from Pinkham, concludes that
“potential for rehabilitation” is not a “factor” that must be clearly articulated and stated in the record by the
prosecutor. This conclusion is simply at odds with the language in Pinkham whe n rea d in its e ntirety.
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identify any factual disputes between the evidence relied upon and the application
filed by the defendant. Id.
If the application for pretrial diversion is denied, the defendant may appeal by
petitioning the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3)
(1997 & Supp. 1998). The only evidence that may be considered by the trial court is
the evidence that was considered by the district attorney general. State v. Winsett,
882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The trial court may conduct a
hearing only to resolve any factual disputes raised by the prosecutor or the
defendant concerning the application, but not to hear additional evidence that was
not considered by the prosecutor. See Pinkham, 955 S.W.2d at 960.
The action of the prosecutor is presumptively correct, and it is subject to
review by the trial court only for an abuse of discretion. The record in this regard
must show an absence of any substantial evidence to support the refusal of the
district attorney general to enter into a memorandum of understanding before a
reviewing court can find an abuse of discretion. The appellate court must determine
whether the trial court’s decision is supported by a preponderance of the evidence.
Id.
The State contends that the trial court improperly substituted its decision for
that of the prosecutor who, after considering all of the relevant factors, denied
diversion because of the seriousness of the offense and the need for deterrence.
The defendant maintains the trial court properly found an abuse of discretion in that
the prosecutor failed to consider her favorable social history and amenability to
correction. She also argues that the prosecutor is not entitled to testify at an
evidentiary hearing to correct the deficiencies.
Our review, like that of the lower courts, indicates that the prosecutor’s
primary consideration in the written denial of diversion was the circumstances of the
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offense, specifically, the amount of money taken and the duration of the criminal
activity. The denial letter stated that diversion was not “in the best interest of the
public,” which, although imprecise, arguably includes deterrence. Although the
prosecutor asserts that he had “carefully reviewed the application and the attached
letters,” the denial does not discuss the defendant’s favorable social history, lack of
a criminal record, and potential for rehabilitation. Moreover, assuming these
essential factors were, in fact, considered, there is no explanation as to how much
weight they were afforded and no rationale as to why they were outweighed by the
other factors in denying diversion. E.g., Herron, 767 S.W.2d at 156.
The State argues, and the dissent writes, that the seriousness of the offense
itself may justify a denial of diversion. A review of the case law reveals, however,
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. E.g., Washington, 866 S.W.2d at 951 (“circumstances of the case and the
need for deterrence may be considered as two of the many factors, [but] they
cannot be given controlling weight unless they are of such overwhelming
significance that they . . . outweigh all other factors”). The facts and circumstances
of nearly all criminal offenses are by definition serious; only by analyzing all of the
relevant factors, including those favorable to the defendant, can appropriate
candidates for this legislative largess be identified in a manner consistent with the
purpose of the pretrial diversion act. Herron, 767 S.W.2d at 156.4
In Pinkham, for instance, the defendant was charged with falsely representing
himself as a lawyer, impersonating a licensed professional, and aggravated perjury.
The denial of diversion emphasized the circumstances of the offense, the losses
4
The dissent cites several Court of Criminal Appeals’ opinions, some unpublished, for the
proposition that the circumstances of the offense may alone justify the denial of diversion. Although these
cases neces sarily involve ca se-by-ca se dete rmina tions, they do not nega te the pros ecution’s obligation to
consider all relevant factors, including those factors that pertain to a defendant’s potential for
rehabilitation. E.g., Pinkham, 955 S.W .2d at 959 ; Washington, 866 S.W .2d at 951 ; Herron, 767 S.W.2d at
156; State v. Lutry, 938 S.W .2d 431, 4 33 (Te nn. Crim . App. 199 6); State v. Carr, 861 S.W.2d 850, 858
(Tenn. Crim. App . 1993).
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sustained by the victim, and the “systematic and continuing criminal activity,” but
also gave extensive consideration to the other relevant factors:
In making this decision to reject the defendant’s diversion
application, I have considered that [the defendant] is a 50
year old man with no criminal record. I have considered
his exemplary social history. I have considered that [the
defendant] appears to be a leader in his community, as
evidenced by the character and reference letters from
lawyers, teachers, professors, ministers, doctors, et al. I
have considered all of the parameters of [the
defendant’s] social, family, personal, educational and
professional background.
I have weighed all those factors in deciding whether the
interests of justice would be served best by placing [the
defendant] on diversion. I have concluded that the
interests of the public substantially outweigh the interests
of the defendant. Since [the defendant] is a highly
educated person who holds a law degree, [the
defendant] knew that his conduct was unlawful and
unethical. Unquestionably, [the defendant] made a
deliberate choice to violate the law. Having violated the
criminal laws . . ., [the defendant] made an
unconscionable decision to engage in a continual pattern
of deception and dishonesty.
Id. at 959. In affirming the denial of diversion, this Court observed that the district
attorney general extensively discussed the relevant factors, identified the evidence
considered, and set forth the weight afforded to each factor as well as the rationale
for his conclusion. Id. at 961.
In contrast, the defendant in Herron, a 24-year-old woman with no prior
criminal record, was charged with two counts of larceny by trick, one offense
involving $5000 and the other involving $6000. The prosecutor’s denial of pretrial
diversion was based primarily on the circumstances of the “contrived, deliberate”
offenses and the need to deter such offenses. Although the trial court denied the
defendant’s petition for certiorari, the Court of Criminal Appeals concluded that the
district attorney general failed to consider other relevant factors that were favorable
to the defendant.
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This Court agreed with the intermediate court’s determination that both the
prosecutor and the trial court failed to consider “that defendant did not have any
criminal record, her social history, her physical and mental condition, including her
educational background, her employment history as well as the stability and
continued support of her family.” Id. at 155. Moreover, the Court once again
stressed that “if the district attorney general bases his decision on less than the full
complement of factors . . . he must, for the record, state why he considers that those
he relies on outweigh the others submitted for his consideration.” Id. at 156.
In this case, the prosecutor’s denial letter concentrated solely upon the
circumstances of the offense and, 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. Moreover,
the prosecutor did not articulate or state why those factors that were considered,
i.e., seriousness of the offense and deterrence, necessarily outweighed the other
relevant factors. The evidence presented a close case on the diversion question;
however, the failure by the prosecutor to consider and articulate all of the relevant
factors constitutes an abuse of discretion. We therefore agree with the conclusion
of the lower courts.
We agree with the dissent’s observations that the offenses committed by the
defendant were serious and aggravated in nature, and further, that the prosecutor’s
findings in this regard were supported by the record. Where we differ, however, is in
our conclusion that the prosecutor’s denial did not show that all relevant factors
were considered in denying diversion, in particular, those factors relevant to the
amenability for rehabilitation. The dissent finds that there were no favorable factors
on the defendant’s behalf, a conclusion with which we disagree based on this 34-
year-old divorced mother of three’s history of church, community, and charitable
activity and otherwise squeaky clean record until this offense, as shown by the
evidence in the record.
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Moreover, the dissent strains to conclude that the evidence regarding the
defendant’s background was unfavorable and that her potential for rehabilitation
was minimal simply by looking only to the circumstances and time span of the
offense. Under such an analysis, in which the facts and circumstances are given
conclusive weight against a defendant’s potential for correction, rare is the
defendant who would qualify for pretrial diversion.
Finally, we also conclude that the Court of Criminal Appeals erred in
remanding the case for an evidentiary hearing in order for the prosecutor to “fill in
the gaps” and correct any deficiencies in the record. First, the procedure adopted
by the Court of Criminal Appeals decreases the importance of the written response
and increases the risk that new reasons or considerations will be introduced during
the hearing without notice to the defendant. Second, the standards of review
governing certiorari proceedings require the trial court to consider only that which
has already been considered by the prosecutor. See Winsett, 882 S.W.2d at 809
(evidence considered at hearing exceeded certiorari review). Accordingly, as
discussed above, an evidentiary hearing may be held only to clarify factual disputes
in the record, and may not be held to allow the prosecutor to discuss new or
additional considerations regarding the denial of diversion.
CONCLUSION
We agree with the trial court that the prosecutor failed to consider all of the
relevant factors and, therefore, abused his discretion in denying the defendant’s
application for pretrial diversion. We further conclude that the Court of Criminal
Appeals erred in remanding the case for a hearing. Accordingly, the judgment of
the Court of Criminal Appeals is reversed and the judgment of the trial court is
reinstated. Costs of appeal are taxed to the State of Tennessee.
________________________________
RILEY ANDERSON, CHIEF JUSTICE
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CONCUR:
Drowota and Birch, JJ.
DISSENT:
Holder, J. - see separate Dissenting Opinion
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