IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1995 SESSION
February 1, 1996
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 01-C-01-9505-CC-00139
)
) Hickman County
v. )
) Cornelia A. Clark, Judge
)
) (Pretrial Diversion)
NATHAN DANIEL BAIOCCO, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Michael J. Flanagan Charles W. Burson
Attorney at Law Attorney General & Reporter
95 White Bridge Rd., Suite 208 450 James Robertson Parkway
Nashville, TN 37205 Nashville, TN 37243-0485
(Argued)
William D. Bridgers
Dale M. Quillen Assistant Attorney General
Attorney at Law 450 James Robertson Parkway
95 White Bridge Rd., Suite 208 Nashville, TN 37243-0485
Nashville, TN 37205
(On Brief) Joseph D. Baugh
District Attorney General
P.O. 937
Franklin, TN 37065
Ronald L. Davis
Assistant District Attorney General
District Attorney General
P.O. 937
Franklin, TN 37065
OPINION FILED:___________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
This Court granted the appellant's Rule 9 interlocutory appeal to determine whether
the trial court abused its discretion in denying the appellant's petition for the writ of
certiorari to review the district attorney general's denial of pretrial diversion. The appellant
contends that the trial court abused its discretion. The state contends that the trial court
properly affirmed the district attorney general's decision to deny pretrial diversion. Since
this Court finds that the trial court did not abuse its discretion, the judgment of the trial court
is affirmed.
On November 7, 1994, the Hickman County Grand Jury returned a two count
presentment against the appellant, Nathan Daniel Baiocco, and a co-defendant, Jason
James Matthews. The first count charged Baiocco and Matthews with the possession of
a controlled substance, marijuana, with the intent to manufacture, sell, or deliver. The
second count charged Baiocco and Matthews with possession of drug paraphernalia. The
circumstances which form the basis of the presentment are relatively brief and
straightforward.
On the 22nd day of July, 1994, Baiocco and Matthews were travelling along
Highway 100 in Hickman County. Baiocco was driving his automobile. Eventually, they
came to a police roadblock. The officers asked Baiocco and Matthews if there were any
drugs in their vehicle. They both answered in the negative. When the officers searched
the vehicle, a glass tube, which is used to smoke marijuana, was found in the glove
compartment, and three bags of marijuana were found in the trunk of the vehicle. The
marijuana apparently had a gross weight of eighty-seven grams.
Baiocco is twenty years of age and single. He lives with his parents in Wayne
County. He graduated from Wayne County High School with a grade point average of
88.1. He is a machinist apprentice with a tool and gauge company in Waynesboro.
The appellant admitted in his application that he was convicted of malicious mischief
when he was a senior in high school. In the application, he was asked: "Have you ever
committed an offense (other than minor traffic offense) for which you were not charged.
If so, state circumstances." The appellant answered "no" to the question. Later, the
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appellant was asked: "Have you ever been involved in the use, purchase, possession or
sale of marihuana, a drug, and/or a chemical, except "over the counter" medications, or
as prescribed by a licensed physician?" The appellant answered in the following manner:
"Yes . . . I have smoked [marijuana] a few times. I have never done any other drugs or
chemicals. I have never sold anything. I don't remember the dates on which I smoked
marijuana: they were scattered and infrequent."
The district attorney general gave nine reasons why he denied Baiocco's application
for pretrial diversion. These grounds may be summarized in the following manner:
a) The offense was committed for economic gain;
b) There is no ground or reason that tends to excuse or justify the offense;
c) Baiocco played a major role in the commission of the offense;
d) Baiocco was "obviously involved in selling/dealing drugs" based upon the
quantity of marijuana and its packaging; and this was not "a spontaneous or impulsive
offense;"
e) Baiocco failed to "offer any explanation of the origin of the drugs, ownership, his
purpose for having them, etc." and did not "dispel the appearance that he is a drug dealer"
in the application;
f) Drug dealers "on the whole [are] not usually amenable to correction by diversion,
and rarely benefit from it;"
g) Baiocco failed "to be cooperative with authorities or give any indication that he
has any remorse, that he recognizes the wrongfulness of his actions, or that he has any
intent to cleanse himself of his illegal drug associations;"
h) Baiocco failed to cooperate after his arrest by providing information as to the
origin of the marijuana; and
i) Deterrence because illicit drugs are a particular problem in Hickman County.
The appellant argues in this Court that the district attorney general should have
considered other factors. However, the record does not reflect that these factors were
brought to the attention of the district attorney general or the trial court. Moreover, the trial
court is bound by the record formulated during the application/decision-making process.
Certainly, this Court cannot consider factors that were not brought to the attention of the
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district attorney general or the trial court.
The trial court reiterated the grounds raised by the district attorney general. The
court then concluded that "having found that the district attorney has stated reasons that
do appear to be accurate, I cannot find that there's been an abuse of discretion in this
case. . . . So the petition for writ of cert[.] on the denial of pretrial diversion is denied."
When the accused appeals from an interlocutory order affirming the decision of the
district attorney general not to divert the accused, the findings of fact made by the trial
court are binding upon this Court; and this Court cannot reverse the judgment of the trial
court absent a showing that the evidence contained in the record preponderates against
the trial court's judgment denying the petition for the writ of certiorari. State v. Perry, 882
S.W.2d 357, 359 (Tenn. Crim. App.), per. app. denied (Tenn. 1994).
In this case, neither party presented evidence in the trial court. The matter was
heard upon the record considered by the trial court, namely, the application filed by the
appellant and the response filed by the district attorney general. See State v. Winsett, 882
S.W.2d 806 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).
It has long been established that the decision of the district attorney general granting
or denying diversion is "presumptively correct;" and the district attorney general's decision
should not be set aside by this Court unless the face of the record establishes a "patent
or gross abuse of prosecutorial discretion." Pace v. State, 566 S.W.2d 861, 870 (Tenn.
1978) (cited with approval in State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983) and
Perry, 882 S.W.2d at 360). In short, this Court cannot set aside the judgment of the trial
court unless the record is void of substantial evidence to support it. Hammersley, 650
S.W.2d at 356; Perry, 882 S.W.2d at 360.
The reasons for denying diversion are stated in detail in the district attorney
general's letter to defense counsel. The reasons are adequate to support the decision of
the trial court. It should be noted that counsel did not dispute any of these grounds during
the decision-making process.
_____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
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_____________________________________
JOHN H. PEAY, JUDGE
_____________________________________
JOE H. WALKER, III, SPECIAL JUDGE
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