IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1996 SESSION
November 8, 1996
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9510-CC-00336
Appellee, * WILLIAMSON COUNTY
VS. * Hon. Donald P. Harris, Judge
MICHAEL GENTRY, * (Judicial Diversion)
Appellant. *
For Appellant: For Appellee:
Ernest W. Williams and Charles W. Burson
J. Russell Heldman Attorney General & Reporter
Attorneys at Law
320 Main Street, Suite 101 Elizabeth T. Ryan
Franklin, TN 37064 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Joseph D. Baugh
District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
Ronald L. Davis
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Michael Gentry, entered a plea of guilt to one count of
official misconduct. Tenn. Code Ann. § 39-16-402(a)(5). Pursuant to a plea
agreement, the trial court imposed a Range I sentence of two years and granted
probation but denied the defendant's request for judicial diversion. Tenn. Code Ann.
§ 40-35-313; State v. Dishman, 915 S.W.2d 458 (Tenn. Crim. App. 1995). In this
appeal, the defendant claims that the trial court abused its discretion by refusing to
grant judicial diversion; he also insists that the district attorney general was guilty of
prosecutorial vindictiveness.
We affirm the judgment of the trial court.
On July 11, 1994, the defendant and Katrina Greer, both of the
Franklin Police Department, were indicted on two counts of official misconduct, two
counts of soliciting unlawful compensation, and one count of conspiracy. At the
time, the defendant was a sergeant of the Williamson County DUI Task Force, a
body comprised of two officers from the Franklin Police Department and one each
from the Brentwood Police, the Fairview Police, and the Williamson County Sheriff's
Department. The defendant supervised all task force activities. During Christmas of
1993, the defendant authorized for himself and the other officers in the task force
holiday pay even though no work would actually take place. A subsequent
investigation established that the defendant and Ms. Greer were the only two task
force members who had made claims for and received the unwarranted holiday pay.
The defendant was untruthful when questioned by his lieutenant during the initial
stages of the investigation.
Initially, the state had offered to allow the defendant to plead guilty to
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one count of official misconduct, be granted probation, and then, upon successfully
completing a two-year probationary period, have his record expunged under the
provisions of judicial diversion. That offer, however, was made contingent upon the
codefendant, Ms. Greer, accepting the same terms. Ms. Greer declined.
Several months later, a trial ensued. During the defendant's
testimony, the state again offered a plea agreement. As to Ms. Greer, however, the
period of probation was increased by one year from the original proposal and, as to
the defendant, the terms were the same except that the judicial diversion offer was
withdrawn. Each accepted the terms of the new plea agreement. At the sentencing
hearing, the state opposed the defendant's request for judicial diversion.
The trial court denied the application on the basis that the defendant
had been untruthful during the course of the investigation and had presented
witnesses "for the purpose of creating an impression with the jury that he and Ms.
Greer did work." The trial court ultimately ruled that because the defendant held a
responsible, public position, had violated the trust incident to the office, and had
been less than candid during the various stages of the proceedings, the request for
judicial diversion should be denied.
Judicial diversion is authorized by statute. It is reserved for "any
person who has not previously been convicted of a felony or a Class A
misdemeanor." Tenn. Code Ann. § 40-35-313(a)(1). It is available only to those
who either plead guilty or are found guilty of "a misdemeanor which is punishable by
imprisonment or a Class C, D, or E felony." Id. The statute authorizes the trial court
to place the defendant "on probation upon such reasonable conditions as it may
require and for a period of time not less than the maximum sentence for the
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misdemeanor ... or ... the felony with which he is charged." Id. In the event the
defendant satisfactorily completes his probationary term, he is entitled to a
discharge and dismissal. Tenn. Code Ann. § 40-35-313(a)(2). The effect of the
dismissal is "to restore [the defendant] to the status he occupied before such arrest
or indictment or information." Tenn. Code Ann. § 40-35-313(b). State v. Evitts, 915
S.W.2d 468 (Tenn. Crim. App. 1995).
The grant of judicial diversion is within the discretion of the trial court.
Only an abuse of that discretion warrants a reversal. State v. Bonestel, 871 S.W.2d
163 (Tenn. Crim. App. 1993). In this case, the decision of the trial court clearly had
a rational basis. The defendant, a veteran police officer in charge of the task force,
qualified as a public employee entrusted with an important role of responsibility.
The plan to acquire unearned pay and the ensuing coverup lasted for a period of
weeks. The defendant and at least one other person participated in the plan. His
lack of candor during the investigation militates against the grant of a more lenient
sentence.
That is not to say, of course, that the defendant did not present a
persuasive claim. At the time of trial, the 33-year-old defendant had an impressive
record. Father of three children, he had graduated from high school and had
attended Austin Peay University. He spent four years in the United States Marine
Corps and was in the Presidential Guard Service. He received several awards while
in the Marines and currently serves in the Tennessee Army National Guard. He has
training in accident investigation, accident reconstruction, and several other fields of
expertise. While the defendant may have been a worthy candidate for the judicial
diversion program, this court must defer to the judgment of the trial court which,
after having observed the demeanor of the defendant and other witnesses, found
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reasonable grounds for denial.
The claim of prosecutorial vindictiveness also has no merit. This
defense is most commonly addressed when the defendant has been reindicted on a
more serious charge in retaliation for the exercise of a constitutional right. See, e.g.,
Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098 (1974); United States v. Wilson,
639 F.2d 500 (9th Cir. 1981). In United States v. Meyer, 810 F.2d 1242 (D.C. Cir.
1987), cert. denied, 485 U.S. 940 (1988), the term was described as follows:
"Prosecutorial vindictiveness" is a term of art with a
precise and limited meaning. The term refers to a
situation in which the government acts against a
defendant in response to the defendant's prior exercise
of constitutional or statutory rights....
The Supreme Court has established two ways in which a
defendant may demonstrate prosecutorial vindictiveness.
First, the defendant may show "actual vindictiveness"--
that is, he may prove through objective evidence that a
prosecutor acted in order to punish him for standing on
his legal rights. This showing is, of course, exceedingly
difficult to make. Second, a defendant may in certain
circumstances rely on a presumption of vindictiveness:
when the facts indicated "a realistic likelihood of
'vindictiveness[,]'" a presumption will arise obliging the
government to come forward with objective evidence
justifying the prosecutorial action. If the government
produces such evidence, the defendant's only hope is to
prove that the justification is pretextual and that actual
vindictiveness has occurred. But if the government fails
to present such evidence, the presumption stands and
the court must find that the prosecutor acted vindictively.
Id. at 1245 (emphasis added)(citations omitted).
In this instance, of course, there was no reindictment. An offer of
settlement which had been made by the state and rejected by the defense several
months before was simply no longer on the table. The record does not establish
that the state, by refusing to agree to judicial diversion at the later date, attempted to
further punish the defendant. In fact, other information, perhaps not available when
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the first offer was made, had likely come into the hands of the state by the time the
new offer was proposed. Moreover, in State v. Turner, 919 S.W.2d 346, 360
(Tenn. Crim. App. 1995), this court held that the issue of prosecutorial vindictiveness
had been waived when the defendant has knowingly and voluntarily entered the
plea of guilt. That is, of course, the very case here. By accepting the revised offer,
the defendant gave up his right to complain.
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
Paul G. Summers, Judge
_______________________________
L.T. Lafferty, Special Judge
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