State v. Freeman ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1998 September 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CR-00016
)
Appe llant, )
)
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK
VELMA JEAN FREEMAN, ) JUDGE
)
Appellee. ) (Pretrial Diversion)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLEE: FOR THE APPELLANT:
RICHARD A. SPIVEY JOHN KNOX WALKUP
142 Cherokee Street Attorney General and Reporter
Kingsport, TN 37660
TODD R. KELLEY
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
GREELEY W ELLS
District Attorney General
JOSE PH E UGE NE P ERR IN
Assistant District Attorney General
Sullivan County Justice Center
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an inte rlocuto ry app eal pu rsuan t to Ru le 9 of the Tennessee Rules
of Appellate Procedu re. The State o f Ten ness ee ap peals from th e trial co urt’s
determination that the District Attorney Gen eral ab used his discretion by denying
pretrial divers ion. W e affirm the judgm ent of the tria l court.
The Defendant was indicted on one count of possession of marijuana and
one count of introducing the marijuana into a penal institution.1 The ba sic facts
are that the Defendant attempted to deliver approximately 7.9 grams of marijuana
to her adult son, who was incarcerated in the Su llivan C ounty jail. She riff’s
deputies obse rved h er plac ing a w hite en velope unde r the ce ll block door. When
it was determined that the envelope contained marijuana, she was arrested.
The Defendant applied for pretrial diversion pursuant to Tennessee Code
Annotated § 40-15-105. Under our law, she was entitled to be considered. The
District Attorney denied the Defendant’s application, setting forth his reasons for
denial in a written response. The Defendant submitted a petition for writ of
certiorari to the Criminal Court of Sullivan County, asserting that the District
Attorney abus ed his discre tion by d enying pretrial d iversion. The District Attorney
submitted his record concerning his denial of pretrial diversion and, after
reviewing this record, the trial court found that the District Attorney had abused
his discretion and ordered that the Defendant be grante d pretr ial divers ion. It is
from this order of the trial court that the State appeals.
1
Tenn. Code Ann. § 39-17-417 and Tenn. Code Ann. § 39-16-201.
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The Pretrial Diversion Act provides a means of avoiding the consequences
of a public prosecution for those who have the potential to be rehabilitated and
who may thus avoid future criminal charges. See Tenn. Code Ann. § 40-15-105.
Pretrial diversion is extraordinary relief for which the Defendant bears the burden
of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 19 93); State
v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980). The general criteria for
probation and pretrial diversion a re similar, but shou ld be more stringently applie d
to diversion applican ts. Poplar, 612 S.W.2d at 501.
The district attorne y is vested w ith the discretion to approve or deny pretrial
diversion. See Tenn. Code Ann. § 40-15-105(b)(3). A defendant who applies
for and is denied pretrial diversion ma y “petition for a writ of certiorari to the trial
court for an abuse of prosecutorial discretion.” Tenn. Code Ann. § 40-15-
105(b)(3). The trial judge cannot substitute his judgment for that of the district
attorney when re viewing a denial of p retrial diversio n. State v. Watkins, 607
S.W.2d 486, 488 (Tenn. Crim. App. 1980). The district attorney’s decision is
viewed as ?presumptively correct” and will not be set aside unless there is a
finding of gross a nd pate nt abus e of discre tion. State v. Hammersley, 650
S.W.2d 352, 356 (Tenn. 1983) (citing Pace v. State, 566 S.W.2d 861, 870 (Tenn.
1978)).
The trial cou rt’s sco pe of re view is limited to th e inform ation p rovide d in
the record upon which the district attorne y based the decis ion. State v. Carr, 861
S.W.2d 850, 8 55-56 (Ten n. Crim . App. 19 93); Poplar, 612 S.W .2d at 500 . “In
view of this evidentiary restrictio n, an e videntia ry hea ring wo uld seem unneeded
in the usual ca se. How ever, a he aring m ay be us eful to clarify matters already
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in the record ab out which there may be so me dispu te.” State v. W insett, 882
S.W.2d 806, 810 (Tenn. Crim. App. 1993). If there is a factual dispute, the trial
judge should conduct an evidentiary hearing to resolve the dispute before
determining whether there has been an abuse of discretion in denying diversion.
State v. Pinkham, 955 S.W .2d 956, 960 (Tenn. 199 7).
In cases in wh ich the facts are un disputed, as the y generally are in this
case, the issue primarily bec omes a question of law, an d this Court therefo re is
not bound by the lower court’s decision. Carr, 861 S.W.2d at 856. In such a
case, the underlying issue is whether, as a matter of law, the district attorney
general abused his or her discretion. Id. Our review focu ses on wh ether there
is substantial evidence in the record to suppo rt the district atto rney’s refu sal to
divert. In a close case, if the record supports the decision to grant or deny
pretrial diversion, “ Carr, 861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286
(Tenn . 1978)).
When a pretrial diversion request is denied , the district atto rney m ust state
the specific reasons for denial in the record to preserve those reasons for
meaningful appellate review. State v. Herron, 767 S.W .2d 151, 156 (Tenn.
1989). The following factors should be considered to determine whether pretrial
diversion should b e grante d:
?[the] circumstances of the offense; the criminal record, social
history and present condition of the de fenda nt, inclu ding h is
mental and physical conditions where appropriate; the deterrent
effect of punish ment upon other crim inal ac tivity; defe ndan t’s
amen ability to correction; the likelihood that pretrial d iversion will
serve the ends of justice and the best interests of both th e pub lic
and defen dant; a nd the applicant’s attitude, behavior since
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arrest, prior reco rd, home environment, current drug usage,
emotional stability, past em ployme nt, general reputation, marital
stability, family re spons ibility and attitud e of law en forcem ent.”
State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.
Markham, 755 S.W .2d 850 , 852-53 (Tenn . Crim. A pp. 198 8)).
Due to the limited scope of certio rari revie w, a form al written respo nse is
required to demonstrate that the district attorney considered all the relevant
factors and to expla in why c ertain factors outweighed others. The narrow scope
of review has made the district attorney’s written response of primary importance.
Indeed, in a revie w in wh ich no hearin g is he ld, the d istrict atto rney’s letter is the
only concre te record from wh ich to evaluate whether an abuse of discretion has
occurre d.
As our supreme court recently stated, a district attorney general is not
required to inclu de in th e reco rd all the evidence relied upon to deny diversion.
State v. Pinkham, 955 S.W .2d 956, 960 (Tenn. 199 7). The district attorney
general is required to identify the factua l basis and rationa le for the decision to
deny pretrial diversion. Id. The information should be sufficiently detailed so that
the defe ndant c an asc ertain the e xistence o f any factua l disputes . Id.
In his lette r deny ing the Defe ndan t’s app lication to pretr ial diversion, the
District Attorney referred to th e Defend ant’s “formal requ est” for diversion.
Although no written application for pretrial diversio n is in the record, the parties
stipulated for a background investigation pursuant to Tennessee Code Annotated
§ 40-15-104. The report of this investigation reflects that the Defendant was
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forty-three years old, divorced, and the mother of four children. She has been
married five times. She dropped out of school after the sixth grade and was
married for the first time at age fourteen. The Defendant reported her health as
“fair” and stated that she has no history of alcohol abuse and has never used
illegal drugs. At the time the background investigation was prepared, she was
employed as a housekeeper at a Kingsport, Tennessee motel and her employer
confirmed that she was a good employee. Prior to this job she had briefly worked
as a housekeeper at another motel in the Kingsport area, and that employer also
confirmed that she w as a go od work er. Prior to that she reported that she was
employed for seven ye ars as a c ook at a c lub in King sport. One of he r daughters
and a granddaughter lived with her. Another child, along with five of the
Defe ndan t’s siblings, lived near her in the Kingspo rt area. Her only prior rec ord
of criminal activity was a conviction of driving without a license and a charge of
violation of “light law,” bo th of which occurred some five years prior to the
prepara tion of the p retrial diversio n report.
The pretrial d iversion report conta ined th e following statement from the
Defen dant co ncernin g the cha rges ag ainst her:
On the date o f the offe nse, it w as req ueste d that I b ring in a bagg ie
with marijuana in it. I was told to put it in an en velope and k ick it
under the bars . I made a big mis take by d oing this. I had a serious
lack of judgment. I wish I had never done this. It was stupid and
irresponsible. I will never in this or any other life ever do it again.
I would be suitable for proba tion be caus e I have never been in
trouble before, and I guarantee I w ill never be in trouble ag ain. I
truly am sorry and I regret that this happened.
In his le tter den ying the Defe ndan t’s application for pretrial diversion, the
District Attorney General stated that his decision was based on the following
factors:
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(1) The defendant’s actions of attempting to introduce
drugs into the Sullivan Cou nty Jail is of special conce rn to the Sta te
due to problems regarding the possession and use of drugs by
inmates of this facility. The defendant’s deliberate and intentional
act endangered the inmates incarcerated at this facility as well as
endangered the men and women employed at this facility. The
introduction of drugs and oth er contra band in to the jail is a serious
problem of epidemic proportions. The granting of pre-trial diversion
for such a crim e will reduce the resistance, if not enco urage, others
who m ight enga ge them selves in like or similar c onduc t.
(2) The defendant’s unstable work record, her family and
social history, as we ll as her lack of education demonstrate her to be
an unacc eptable candida te for diversio n. It should be noted that the
defendant was trying to pass drugs to her own child who was
incarcerated on felony charges at the time.
(3) The defendant has previously been convicted of no
driver’s license.
After reviewing the record submitted by the Dis trict Atto rney G enera l, the
trial judge entere d a m emo randu m ord er whic h inclu ded fin dings of fact a nd his
analys is of the applicable law. The trial judge observed that the first factor relied
upon by the District Attorney General could be generally categorized as “the
circumstances of the case and the need for deterrence.” The trial judge
recognized that unde r Tenn essee law, ?the circumstances of the case and the
need for deterrence . . . cannot be given controlling weight [in determining
whether to grant pr etrial diversio n] unless [these fac tors] are 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v.
Markham, 755 S.W .2d 850 , 853 (T enn. C rim. App . 1988)). ?In the absence of
such exceptional circum stance s, Id. (quoting Markham, 755
S.W.2d at 853 ). The trial court furthe r noted that the District A ttorney ’s
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generalized statement concerning the circumstances of the offense and the need
for deterrence would apply to any Class C, D, or E felony, but noted that the
legislature has specifically provided that a defendant charged with introducing
marijuana into a penal institution is eligible for pretrial diversion.
Concerning the se cond factor s et forth b y the D istrict Atto rney G enera l in
denying diversion, the trial judge noted that the Defendant was forty-three years
old and had no significant criminal record. The judge noted that “the Defendant
left schoo l at age fou rteen, go t married , and ha d four ch ildren. She is obviou sly
under-educated, works as a maid, and is described as a good worker.” The trial
judge express ed his co ncerns about the constitution ality of denying diversion
based upon a lack of formal education and further noted that the legislature had
set no ed ucationa l requirem ents for a p erson s eeking diversion.
W e can un derstand why a district attorn ey gene ral would prefer no t to
grant pretrial diversion to anyone charged with trying to deliver marijuana to an
inmate in a loca l jail or other penal institution. However, as the trial judge pointed
out, the law enacted by our legislature provides that someone who commits such
a crime is eligible for diversion unless the pe rson’s prior crimina l record renders
them ineligible. While the district attorney has the discretion to grant or deny
diversion to eligible defendants, that discretion is not absolute.
After reviewing the record submitted by the District Attorney General, the
trial court implicitly found that the co nclusory statem ents asserted by the District
Attorney Gene ral did not s et forth a suffic ient ba sis for denying pretrial diversion
to the Defendant, and based on the record, the trial judge determined that
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denying the Defendant pretrial diversion constituted an abuse of discretion. From
our review of the record, we are unable to conclude that the trial judge erred.
The judgment of the trial court is accordingly affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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