State v. Conley ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
March 5, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9702-CC-00056
Appellee, * RHEA COUNTY
VS. * Hon. J. Curtis Smith, Judge
MARTIN CONLEY, * (Pretrial Diversion)
Appellant. *
For Appellant: For Appellee:
J. Arnold Fitzgerald John Knox Walkup
Attorney at Law Attorney General and Reporter
P.O. Box 227
1470 Market Street Michael J. Fahey, II
Dayton, TN 37321 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0490
James W. Pope, III
Asst. District Attorney General
Third Floor, First American Bank Building
Dayton, TN 37321
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Martin Conley, was indicted for possession of over ten
pounds of marijuana with intent to deliver or sell. See Tenn. Code Ann. § 39-17-
417. After being denied his request for pretrial diversion by the state, the defendant
filed a petition for certiorari in the trial court which was also denied. See Tenn. Code
Ann. § 40-15-105(b)(3). In this interlocutory appeal, the defendant insists that the
district attorney general abused his discretion by the denial of pretrial diversion and
that the trial court erred by refusing to grant placement into the program. Tenn. R.
App. P. 9.
We affirm the judgment.
The petition for certiorari, filed October 25, 1996, is attached as a part
of the defendant's brief but is not a part of the record. See Price v. Mercury Supply
Co., Inc., 682 S.W.2d 924, 929, n.5 (Tenn. App. 1984); Davis v. State, 673 S.W.2d
171, 173 (Tenn. Crim. App. 1984). The defendant claims that his social history, his
lack of criminal record, and his amenability to rehabilitation support placement on
pretrial diversion. A letter by the district attorney general denying the application for
probation was not included in the record; however, the memorandum opinion
entered by the trial court provides the reasons for denial:
More than 19 pounds of marijuana was found in the
defendant's storage unit. Defendant's explanation for the
presence of the marijuana is that he rented the unit to
someone else and that the marijuana belonged to that
individual. The application for pre-trial diversion does not
reveal the description or name of the alleged renter.
Apparently the defendant maintained the key for the
storage unit in his possession....
[T]he defendant does have a criminal history during the
1980[']s which he failed to divulge in his application. He
was convicted of felonious possession of a controlled
substance in 1983. The Attorney General rightly points
to the fact [that] granting pre-trial diversion ... with such a
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large amount of drugs involved would depreciate the
seriousness of the offense.
In summary, defendant's application reflects deception.
He failed to list his complete criminal history and
particularly, a prior conviction for felonious possession of
a controlled substance. His application failed to reveal a
description or a name of an individual he felt was
trustworthy enough to be allowed use of his storage unit.
Finally, the charge involves a large amount of marijuana
and pre-trial diversion would depreciate the seriousness
of this offense.
Initially, it is the duty of the appellant to file an adequate record in order
to convey a fair, accurate, and complete account of what transpired with respect to
the issues on appeal. State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App. 1985);
State v. Jones, 623 S.W.2d 129 (Tenn. Crim. App. 1981). Without a fully developed
transcript, this court must presume that the evidence supports the trial court's
actions and rulings. State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983);
State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983). Here, because
there is less than a complete record, this court is handicapped in its consideration of
the primary issue.
We are guided by well-established principles. Whether to grant or
deny an application for pretrial diversion is within the discretion of the district
attorney general. Tenn. Code Ann. § 40-15-105; State v. Hammersley, 650 S.W.2d
352, 353 (Tenn. 1983); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App.
1993). On a petition for certiorari after a refusal by the district attorney to grant
pretrial diversion, the hearing conducted by the trial judge is limited to two issues:
(1) whether the accused is eligible for diversion; and
(2) whether the attorney general abused his discretion in
refusing to divert the accused.
State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim. App. 1980).
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In making the initial determination, the district attorney must consider
(1) the circumstances of the offense; (2) the defendant's criminal record; (3) the
defendant's social history; (4) the defendant's physical and mental condition; (5) the
deterrent effect of punishment upon other criminal activity; (6) the defendant's
amenability to correction; (7) the likelihood that pretrial diversion will "serve the ends
of justice" and the best interests of the defendant and the public; and (8) the
defendant's "attitude, behavior since arrest, prior record, home environment, current
drug usage, emotional stability, past employment, general reputation, marital
stability, family responsibility, and attitude of law enforcement." State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v. Markham, 755
S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)). The nature and circumstances of
the alleged offenses are not only appropriate factors to be considered upon
application for diversion but may alone provide a sufficient basis for denial. Carr,
861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984).
The circumstances of the case and a generalized need for deterrence,
however, "cannot be given controlling weight unless they are 'of such overwhelming
significance that they [necessarily] outweigh all other factors.'" Washington, 866
S.W.2d at 951 (emphasis and alteration in original) (quoting Markham, 755 S.W.2d
at 853). Where there are no "such exceptional circumstances, 'the district attorney
general must consider evidence which tends to show that the applicant is amenable
to correction [by diversion] and is not likely to commit further criminal acts.'" Id.(alteration in original); see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim.
App. 1993).
In State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989), our supreme
court expounded upon the duties of the district attorney general in making the initial
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assessment:
This requirement entails more than an abstract statement
in the record that the district attorney general has
considered these factors. He must articulate why he
believes that a defendant in a particular case does not
meet the test. If the attorney general bases his decision
on less than the full complement of factors enumerated
in this opinion he must, for the record, state why he
considers that those he relies on outweigh the others
submitted for his consideration.
"The decision of a district attorney general granting or denying pretrial diversion to
an accused is said to be 'presumptively correct'; and the decision should not be set
aside unless there has been a 'patent or gross abuse of prosecutorial discretion.'"
State v. Perry, 882 S.W.2d 357, 360 (Tenn. Crim. App. 1994) (quoting Pace v.
State, 566 S.W.2d 861, 870 (Tenn. 1978)). See State v. Pinkham, 955 S.W.2d 956,
957 (Tenn. 1997) (holding the district attorney must state "the factual basis and
rationale for denying diversion"). Clearly, any appellant should always include the
letter of denial in the record.
From the information available, it is apparent that the denial of this
application for diversion must be upheld. See State v. Houston, 900 S.W.2d 712(Tenn. Crim. App. 1995). Although the district attorney general's letter was not
included in the record, the trial court made reference to three sound reasons for
denying the application. A prior criminal history and lack of candor both suggest a
lack of amenability to rehabilitation. The significant amount of marijuana found in
the storage unit of the defendant presents a particularly aggravated circumstance.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
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CONCUR:
_____________________________
William M. Barker, Judge
_____________________________
Curwood Witt, Judge
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