State v. Shonda McGill ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1996 SESSION
FILED
October 10, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9507-CC-00194
)
) Hardin County
v. )
) Honorable C. Creed McGinley, Judge
)
SHONDA KAY McGILL, ) (Pretrial Diversion)
)
Appellant. )
DISSENTING OPINION
I respectfully dissent from the majority opinion. I believe that the record
reflects a failure by the District Attorney to give due consideration to all of the factors
relevant to pretrial diversion so as to constitute an abuse of discretion. I believe that
the case should be remanded to the trial court for further proceedings.
Our supreme court has provided particular factors that prosecutors are to
consider in exercising their discretion to grant or deny pretrial diversion. See State v.
Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). Given the judicial review process
provided by law, this has led to a recurring theme in reported cases about prosecutors
not showing on the record that they have duly considered all of the factors. See, e.g.,
State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988). Our supreme court
noted the continuing problem and stated that prosecutors must articulate the reasons
for denial and reflect on the record their consideration of all of the relevant factors.
State v. Herron, 767 S.W.2d 151, 155-56 (Tenn. 1989). In fact, it stated that trial courts
must follow a similar path in their review of pretrial diversion cases. Id. at 156.
Thus, if a prosecutor does not show that he or she followed the
procedures and standards required by law for use and consideration in the decision-
making process for pretrial diversion, then the ultimate decision should not be entitled
to deference by a reviewing court. With the burden being upon the prosecutor to insure
that the record shows his or her due consideration of all of the required factors, we
should not presume that due consideration occurred when we are faced with a deficient
record. In other words, I do not believe that a reviewing court can say, as a matter of
law, that the prosecutor exercised sound discretion in making a decision that did not
result from consideration of all of the required factors.
Once the trial court determines that the prosecutor failed to consider all of
the relevant factors, then it must determine the relative merits of the defendant’s claim
or, in the appropriate case, it may remand the matter to the prosecutor for further
consideration under the appropriate guidelines. See, e.g., State v. Winsett, 882 S.W.2d
806 (Tenn. Crim. App. 1993). In the present case, though, the trial court gave
deference to the prosecutor’s decision even though that decision was obtained without
following the required decision-making process. Such a deference, also given in the
majority opinion, was and is unwarranted.
Relative to the offenses, the record reflects that the defendant drove her
then boyfriend to locations where he and another man burglarized homes -- two in one
night and another fifteen days later. The record indicates that no one was home at the
time of these burglaries.
One victim wrote that her son’s cash savings (amount undisclosed) and
her jewelry (not expensive, but of irreplaceable sentimental value) were taken and that
she remains uneasy at night. She would like things returned and restitution to be paid,
but no amount is mentioned. She also stated that she thought the defendant should
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receive probation and community service obligations that would profit the defendant in
personal and community responsibility.
Another victim wrote that her property loss was approximately two to three
thousand dollars, including guns, jewelry and family photographs. She now has a
house dog and sleeps with a loaded gun nearby. She requested restitution for what her
insurance has not covered. Also, she did not think that the defendant was remorseful
and stated that the defendant should be made “accountable” for her actions. There is
no information in the record regarding the views of the victims in the third case.
Regarding the defendant, the record reflects that she was nineteen years
old at the time of the burglaries and had no prior criminal record of any type. She
received a GED, is single, and has resided with her mother since her return to Hardin
County, a matter of weeks before the offenses occurred. She had a good, albeit short,
work history, interrupted by her moves to Memphis, then Nashville, and then back to
Hardin County.
The defendant acknowledged occasional use of alcoholic beverages and
the use of marijuana or cocaine a total of five times, the last being the month of the last
burglary and her arrest. There is no indication of any medical or mental health
problems. The petition for pretrial diversion, signed under oath by the defendant,
includes the following:
3. She further avers that she has a proper attitude and
behavior since her arrest; that she has no continuing criminal
involvement, that she has a proper home environment and that
she has no current drug or alcohol use problem; that she is
emotionally stable, that she attends the Baptist church, that her
general reputation is good and has exhibited family
responsibility and has a proper respect and attitude for the law
enforcement for the State of Tennessee.
4. She further avers that she will not become a repeat
offender and will state and show to the Court that the incidents
for which she was indicted are an isolated incident in her life
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and that she has learned her lesson and will not again violate
the laws of the State of Tennessee.
5. She avers that she has and can continue to
demonstrate that she should be eligible for the preferred
treatment of pre-trial diversion and that society will be better
served if she is placed on diversion.
The foregoing rendition of the defendant’s background, social history, and expressed
attitudes is detailed in this opinion in light of the fact that our supreme court has stated
that the focus of a diversion consideration should be on the defendant’s amenability to
correction, with the ultimate issue being to what extent diversion serves the ends of
justice and the best interest of both the public and the defendant in this particular case.
Hammersley, 650 S.W.2d at 355.
Obviously, as the majority opinion notes, the nature and circumstances of
the criminal conduct or the particular need for deterrence may be of “such
overwhelming significance that they outweigh all other factors.” Markham, 755 S.W.2d
at 853. However, I do not believe that this case falls into either such category whereby
the defendant is excluded from diversion regardless of her background and
rehabilitation potential. Pretrial diversion has been approved in cases involving greater
financial losses derived from intentionally planned criminal conduct for a greater period
of time than reflected in the present case. See Herron, 767 S.W .2d at 152, 155 (two
larcenies by trick totaling eleven thousand dollars, committed eight days apart);
Markham, 755 S.W.2d at 851, 853 (two-count indictment regarding conspiracy to
defraud the state, six thousand four hundred dollars actually paid over several months).
Thus, I would remand the case to the trial court for it to determine whether
it is appropriate to remand the matter to the prosecutor for reconsideration, with both
parties having the opportunity to present a more detailed record. If the trial court
determines that such remand would be inappropriate under the circumstances, then it
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should decide the issue of diversion upon full and due consideration of all of the factors
relevant to pretrial diversion.
___________________________
Joseph M. Tipton, Judge
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