State of Tennessee v. Charlotte McCarter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 27, 2011
STATE OF TENNESSEE v. CHARLOTTE McCARTER
Extraordinary Appeal from the Circuit Court for Sevier County
No. 14694-II, 15281-II Richard R. Vance, Judge
No. E2010-02127-CCA-R10-CD - Filed November 18, 2011
In this extraordinary appeal, the Defendant-Appellant, Charlotte McCarter, appeals the Sevier
County Circuit Court’s order refusing to grant an interlocutory appeal regarding the denial
of pretrial diversion. On appeal, McCarter argues that the prosecutor abused her discretion
in denying her application for pretrial diversion by: (1) failing to properly consider her
amenability to correction; (2) making “rote statements” that the evidence weighed in favor
of denying pretrial diversion instead of properly weighing the relevant factors; (3) relying on
the circumstances of the offense and the need for deterrence, where these factors were not
of such “overwhelming significance” to justify the denial; and (4) failing to have “substantial
evidence” to support her decision to deny pretrial diversion. Upon review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
R OBERT W. W EDEMEYER, JJ., joined.
Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the Defendant-
Appellant, Charlotte McCarter.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James B. Dunn, District Attorney General, and Ashley D. Musselman, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Prosecutor’s Denial of Pretrial Diversion. McCarter was charged by presentment
in case number 14694-II with the sale and delivery of a Schedule II controlled substance on
March 3, 2009. She was also charged by presentment in case number 14695-II with the sale
and delivery of a Schedule III substance on March 6, 2009. McCarter filed an application
for pretrial diversion for both of these case numbers on April 9, 2010, which was denied by
the prosecutor. On May 17, 2010, the grand jury issued a superseding presentment in case
number 15281-II, which charged McCarter with the sale and delivery of a Schedule II
controlled substance on March 6, 2009.
On June 7, 2010, the trial court entered an order dismissing the indictments in case
numbers 14694-II and 14695-II based on the superseding presentment in case number 15281-
II. On June 22, 2010, McCarter then filed a separate application for pretrial diversion in case
number 15281-II. On June 28, 2010, the trial court entered a corrected order showing that
it was only dismissing case number 14695-II and that case number 14694-II was still
pending.
On June 28, 2010, the assistant district attorney general denied McCarter’s application
in case number 15281-II. In her letter denying pretrial diversion, the prosecutor summarized
the facts in case number 15281-II:
On March 6, 2009, Detective Tommie Morlock and Detective Mark
Turner . . . met with a Confidential Informant in Sevierville, Tennessee in
reference to purchasing an amount of Schedule II Controlled Substance from
[McCarter]. . . .
The Confidential Informant . . . met with [McCarter] at her residence.
The Confidential Informant gave [McCarter] $60.00 in confidential funds in
exchange for four 15 mg Roxicet tablets. [McCarter] then gave the
Confidential Informant the tablets.
During this transaction [McCarter] also offered to sell the Confidential
Informant some additional Hydrocodone tablets in the future. . . . Specifically,
[McCarter] stated that her doctor ha[d] “upped her dosage.” She explained
that she [was] now prescribed 8 pills a day. She stated that she ha[d] 300 pills,
which [was] “plenty.” [McCarter] warn[ed], however, that if someone
need[ed] the pills she [did] not want them to come “four or five times a day”
because that would “be suspicious.” . . .
The 15 mg Roxicet tablets were also sent to the TBI Crime Lab for
analysis, and were found to be Oxycodone, a Schedule II Controlled
Substance. . . .
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The prosecutor’s denial letter also included a summary of the facts in case number
14694-II since those facts were “relevant due to the similar nature of the transaction, and
because they show[ed] a continuing course of conduct.” The assistant district attorney
general summarized the facts in case number 14694-II:
On March 3, 2009, Detective Tommie Morelock and Detective Mark
Turner of the Sevier County Sheriff’s Office Street Crimes Unit met with a
Confidential Informant in Sevierville, Tennessee, in reference to purchasing
an amount of Schedule II Controlled Substance from [McCarter]. . . .
The Confidential Informant met with [McCarter] at her residence. The
Confidential Informant gave [McCarter] $70.00 in exchange for four 15 mg
Roxicet tablets. [McCarter] then gave the Confidential Informant the tablets,
as well as $10.00 in change. . . .
The 15 mg Roxicet tablets were sent to the TBI Crime Lab for analysis,
and were found to be Oxycodone, a Schedule II Controlled Substance. . . .
The prosecutor noted that the facts provided in case number 14694-II were “identical” to
those facts listed in McCarter’s previous application for pretrial diversion.
The assistant district attorney general also provided information regarding McCarter’s
background, which included a discussion of her sixth-grade education, her family, and her
work history, which showed that she had been employed from 1988 to 2002, when she
became disabled. The prosecutor noted that McCarter suffered from “crippling arthritis,
asthma, and [was] a breast cancer survivor” and acknowledged that McCarter had no prior
criminal offenses. She also noted that McCarter had never been counseled for drug or
alcohol abuse. The assistant district attorney general recited McCarter’s version of the facts
in this case and discussed the twenty-four letters of recommendation forwarded by
McCarter’s family and friends.
Regarding the circumstances of the offense, the prosecutor emphasized that McCarter
sold Schedule II Roxicet tablets to the confidential informant on two separate dates and
offered to sell the informant hydrocodone tablets in the future. Pursuant to an audio
recording1 of the drug transaction on March 6, 2009, McCarter told the confidential
informant that her doctor had increased her dosage and that she now had 300 pills, which was
“plenty.” McCarter also told the informant that she did not want buyers of the pills to
1
The audio recordings of McCarter’s drug transactions on March 3, 2009, and March 6, 2009, were
not included in the record on appeal.
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approach her “four or five times a day” because that would “be suspicious.” The assistant
district attorney opined that McCarter’s statements showed an intent to sell additional drugs
in the future and to avoid arrest by police.
The prosecutor stated that the evidence from the audio recording of the drug
transaction did not support McCarter’s version of the facts of the offense, namely that she
was supplementing the pain needs of the confidential informant’s mother. The prosecutor
gave weight to the fact that McCarter had participated in “at least two drug transactions” and
gave “great weight” to McCarter’s statements that she had “plenty” of pills and that she
would sell drugs to other individuals in the future. The prosecutor found that the
circumstances of the offense favored a denial of pretrial diversion.
The assistant district attorney general said that she gave “credit” to McCarter for her
social history but did not find this factor to outweigh the other factors in this case.
Specifically, the prosecutor noted that McCarter had lived in Sevier County her entire life,
had attended school until the fifth grade, and after helping raise her family, had been
gainfully employed until she became disabled. The prosecutor stated that she had reviewed
the many letters of recommendation from friends and family who described McCarter as a
“nice, hard-working, honest, and family-oriented” person who attended church and never got
in trouble. She gave credit to McCarter for her good reputation in the community.
Regarding McCarter’s physical or mental condition, the prosecutor said that
McCarter’s medical records confirmed that she suffered from arthritis and was a breast
cancer survivor. Although the prosecutor gave McCarter “credit” for suffering from these
health conditions and battling cancer, she found that these physical or mental conditions did
not outweigh the other factors in this case. Moreover, the prosecutor noted that McCarter’s
health conditions made “it easier for [McCarter] to obtain prescription drugs, like the drugs
she sold in these cases.” The prosecutor said that McCarter’s medical conditions allowed her
access to the following drugs: Oxycodone, Tramadol, Furosemide, Megestrol, Clonazepam,
Alprazolam, Advair, and Fentanyl.
Regarding her criminal history, the assistant district attorney general acknowledged
that McCarter did not have a criminal history. However, she determined that this factor did
not outweigh the other factors in this case.
The prosecutor found that McCarter was not amenable to correction given that she had
sold drugs to the confidential informant on two different dates, had offered to sell the
confidential informant hydrocodone tablets in the future, had stated that her doctor had
“upped her dosage” to eight pills a day, and had said that she did not want people buying pills
from her “four or five times a day” because that would “be suspicious.” The assistant district
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attorney general gave “great weight” to McCarter’s statements that she had “plenty” of pills
and that she was willing to sell pills in the future. Ultimately, she found that McCarter’s
actions and statements “reflect[ed] poorly on [her] amenability to correction.”
Regarding the need for deterrence, the prosecutor again gave “great weight” to
McCarter’s statements that she had “plenty” of pills and that she was willing to sell pills to
others in the future. She said that McCarter’s statements “not only show[ed] that [she was]
willing to participate in additional drug selling, but also indicate[d] that [she was] likely to
continue defrauding her doctors in order to obtain pills to sell.” She added, “Granting
pretrial diversion to [McCarter] would depreciate the seriousness of the offense[s] and would
depreciate the seriousness of the statements made by [her].” Moreover, the assistant district
attorney general claimed that a grant of pretrial diversion “would suggest that [McCarter’s]
behavior is tolerable and [might] encourage [McCarter] or other similarly situated individuals
to continue with similar illegal behavior.”
The prosecutor found that granting pretrial diversion would not serve the ends of
justice and would depreciate the seriousness of the offense. She maintained that encouraging
or allowing criminal offenses like the ones in this case was “clearly not in the interest of the
public or the Defendant” and concluded that “the public interest and the ends of justice in
such a case strongly favor prosecution.”
In conclusion, the assistant district attorney general gave “credit” to McCarter for her
social history, lack of criminal history, and physical and mental condition but was “troubled
by” the circumstances of the case. Specifically, she was “concerned that the Defendant [was]
likely to continue defrauding her doctors in order to obtain pills to sell[] and [was] disturbed
that she [was] using her physical conditions to obtain prescription[s] by fraud – another
criminal offense.” The prosecutor also was “alarmed by the Defendant’s expressed
willingness to illegally sell pills in the future.” The prosecutor concluded that a denial of
pretrial diversion was proper because “the circumstances of the offense, as well as the
Defendant’s amenability to correction, the deterrent effect on other criminal activity, and the
ends of justice and interest of the public outweigh the factors in favor of suspending
prosecution.”
Hearing on Petition for Writ of Certiorari. On June 30, 2010, McCarter filed a
petition for writ of certiorari in case numbers 14694-II and 15281-II, claiming that the
prosecutor abused her discretion in denying her request for pretrial diversion. On August 3,
2010, the trial court conducted a hearing, wherein defense counsel reminded the court that
McCarter was charged with selling a mere eight pills. Moreover, he asserted that the
prosecutor “hinged [her] denial seemingly upon one statement that was made in this recorded
transaction by [McCarter], that being that her doctor has elevated the prescription amount
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that she is receiving and that she has the ability to sell more pills in the future.” Defense
counsel noted that the prosecutor’s denial did not indicate that the prosecutor discussed the
matter of McCarter’s pretrial diversion with law enforcement. Specifically, he asserted that
Tommie Morelock, the detective involved in this case, did “not oppose [pretrial] diversion
in this matter for this lady considering all the circumstances that he now knows with regard
to her health and her condition.”2 He stressed that McCarter had no criminal history, had
devoted her life to caring for and supporting her family, was a lifelong resident of Sevier
County, and had many health issues. He also argued that the prosecutor must consider all
factors, including those that are favorable to the defendant. See State v. Bell, 69 S.W.3d 171,
178 (Tenn. 2002). Finally, defense counsel contended that the prosecutor failed to weigh
each factor and only provided abstract statements that the unfavorable factors outweighed
the favorable factors for the purposes of pretrial diversion. In response, the prosecutor
asserted that she considered each request for pretrial diversion on a case-by-case basis. She
added that she reviewed all of the records, letters of recommendation, and medical records
that had been submitted for McCarter and considered all of the relevant factors before
denying pretrial diversion in this case.
At the conclusion of the hearing, the trial court determined, after considering
arguments of counsel and reviewing the record as a whole, that the prosecutor did not abuse
her discretion in denying McCarter’s application for pretrial diversion. Defense counsel then
made an oral motion for permission to file an interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure, which the trial court denied. Then, on September
16, 2010, the trial court entered an order denying McCarter’s petition for writ of certiorari
in case numbers 14694-II and 15281-II. That same day, the trial court entered a separate
order denying McCarter’s request for permission to file an interlocutory appeal in both cases.
On October 13, 2010, McCarter filed an application for an extraordinary appeal
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure in case number 15281-II,
and the State responded to this application. On November 3, 2010, this court granted
McCarter’s request for an extraordinary appeal in case number 15281-II. On November 10,
2010, McCarter requested permission to amend her appeal to include case number 14694-II.
On December 6, 2010, this court entered an order allowing McCarter’s application for an
extraordinary appeal to include case numbers 14694-II and 15281-II.
ANALYSIS
2
Detective Tommie Morelock did not testify at the August 3, 2010 hearing regarding the attitude of
law enforcement, and there is no information in the record corroborating defense counsel’s assertion that
Detective Morelock supported the grant of pretrial diversion in McCarter’s case.
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Tennessee Code Annotated section 40-15-105(a)(1)(A) allows a district attorney
general to suspend prosecution of an qualified defendant for a period of up to two years. A
qualified defendant is one who has not been previously granted pretrial or judicial diversion,
who has no prior misdemeanor conviction requiring the service of a sentence of confinement,
and who has no prior felony conviction within a five-year period after completing the
sentence or probationary period for the prior conviction. T.C.A. § 40-15-105(a)(1)(B)(i)(a)-
(b) (2006). In addition, the offense for which a defendant seeks pretrial diversion cannot be
a Class A or Class B felony, certain Class C felonies, a sexual offense, driving under the
influence, or vehicular assault. Id. § 40-15-105(a)(1)(B)(i)(c) (2006). In order to be granted
diversion, a defendant must agree to complete certain conditions for the duration of the
diversion period. Id. § 40-15-105(a)(2) (2006). Upon completion of pretrial diversion, the
charges against the defendant shall be dismissed with prejudice. Id. § 40-15-105(e) (2006).
Although statutorily eligible, a qualified defendant is not presumed to be entitled to
pretrial diversion. State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002) (citing State v. Curry,
988 S.W.2d 153, 157 (Tenn. 1999)). The decision to grant or deny pretrial diversion lies
within the discretion of the district attorney general. T.C.A. § 40-15-105(b)(3); State v.
Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997). A defendant has the burden of establishing
his or her suitability for pretrial diversion. Bell, 69 S .W.3d at 179.
The following relevant factors must be considered by the prosecutor when
determining whether to grant or deny pretrial diversion: (1) the defendant’s amenability to
correction; (2) the defendant’s propensity to re-offend; (3) the circumstances of the offense;
(4) the defendant’s criminal record; (5) the defendant’s social history; (6) where appropriate,
the defendant’s physical and mental condition; and (7) whether pretrial diversion will serve
the best interests of the public and the defendant. Pinkham, 955 S.W.2d at 959-60 (quoting
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). Additionally, the following
factors and circumstances may also be considered to determine if pretrial diversion is
warranted: the deterrent effect of punishment upon other criminal activity, the defendant’s
attitude and behavior since arrest, home environment, current drug use, emotional stability,
employment history, general reputation, marital stability, and family responsibility as well
as the attitude of law enforcement. State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)
(citations omitted).
The prosecutor “has a duty to exercise his or her discretion by focusing on a
defendant’s amenability for correction and by considering all of the relevant factors,
including evidence that is favorable to a defendant.” Bell, 69 S.W.3d at 178 (citing Pinkham,
955 S.W.2d at 959; Hammersley, 650 S.W.2d at 353). Moreover, a prosecutor should
consider “[a]ny factors which tend to accurately reflect whether a particular defendant will
or will not become a repeat offender[.]” Hammersley, 650 S.W.2d at 355. Factors related
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to the need for deterrence and the circumstances of the offense “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 (quoting State v. Markham, 755 S.W.2d
850, 853 (Tenn. Crim. App. 1988)). “If the district attorney general denies pretrial diversion,
that denial must be written and must include both an enumeration of the evidence that was
considered and a discussion of the factors considered and weight accorded each.” Pinkham,
955 S.W.2d at 960 (citing State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993)).
The prosecutor must fully articulate his or her evaluation of each factor:
If the application is denied, the factors upon which the denial is based
must be clearly articulable and stated in the record in order that meaningful
appellate review may be had. 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 a defendant in a particular case
does not meet the test.
State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989) (internal citation omitted), overruled in
part on other grounds by Yancey, 69 S.W.3d at 559. Finally, the district attorney general
must identify any disputed facts and must provide a reason for the denial of pretrial diversion.
Winsett, 882 S.W.2d at 810.
If the application for pretrial diversion is denied, the defendant may seek a writ of
certiorari in the trial court. T.C.A. § 40-15-105(b)(3). The prosecutor’s decision to deny
pretrial diversion is presumptively correct and is subject to review by a trial court for an
abuse of discretion. Curry, 988 S.W.2d at 158. “[T]he trial court must only determine
whether the district attorney general has abused his or her discretion by failing to consider
and weigh all of the relevant factors or by reaching a decision that is not supported by
substantial evidence.” Bell, 69 S.W.3d at 179 (citing Curry, 988 S.W.2d at 158;
Hammersley, 650 S.W.2d at 355).
The Tennessee Supreme Court has stated that “the district attorney general’s failure
to consider all of the relevant factors, including evidence favorable to the defendant, cannot
be cured by the trial court’s review.” Id. “Because the trial court does not have appropriate
findings made by the district attorney general upon which to review, allowing it to ‘fill in the
gaps’ would extend de novo review over the district attorney general’s decision and would
allow the trial court to substitute its view over the pretrial diversion decision-making
process.” Id. Consequently, “[i]f the trial court determines that the district attorney general
has failed to consider and weigh all relevant factors, the trial court must reverse the district
attorney general’s decision and remand the matter for further consideration and weighing of
all of the factors relevant to the pretrial diversion determination.” State v. McKim, 215
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S.W.3d 781, 788 (Tenn. 2007) (citing Bell, 69 S.W.3d at 180). However, “[i]f the trial court
determines that the district attorney general has considered all relevant factors, and no
irrelevant ones, and has nonetheless committed an abuse of discretion in denying diversion,
the trial court may order the prosecutor to place the defendant on pretrial diversion.” Id. n.3
(citing T.C.A. § 40–15–105(b)(3) (Supp. 2004)).
Upon review of the writ of certiorari, the trial court must: (1) limit its consideration
to the evidence which was before the prosecutor and the reasons given by the prosecutor in
denying diversion; (2) conduct a hearing only to resolve any factual disputes raised by the
prosecutor or the defendant concerning the petition but not to hear additional evidence; (3)
adhere to the same case-by-case balancing procedure that is imposed upon the prosecutor;
and (4) state its findings in writing. State v. Oakes, 269 S.W.3d 574, 578 (Tenn. Crim. App.
2006) (internal citations omitted).
In the event that the trial court refuses to grant the defendant’s writ of certiorari, the
defendant may seek interlocutory review in this court. See Tenn. R. App. P. 9, 10; Tenn. R.
Crim. P. 38. On review, this court is “bound by the factual findings made by the trial court
unless the evidence preponderates against them.” Bell, 69 S.W.3d at 177. “However, if the
evidence of record is undisputed and calls for no finding of fact to resolve the issue, a trial
court’s determinations constitute conclusions of law to which an appellate court is not
bound.” State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (citations omitted).
Accordingly, in a case where the facts are undisputed, this court must determine whether the
prosecutor abused his or her discretion in denying the defendant’s application for pretrial
diversion. Id.
I. Prosecutor’s Failure to Focus on Amenability to Correction. McCarter argues
that the prosecutor primarily focused on the circumstances of the offense in denying pretrial
diversion and gave “only lip service to [her] amenability to correction.” Specifically, she
asserts that the prosecutor focused on her statements that she was “willing to sell more pills
in the future” but argues that these statements were made by her during the offense and are
not indicative of whether she would reoffend now that she has been arrested and criminally
charged. In addition, she contends that the prosecutor failed to consider her “attitude,
behavior since arrest, . . . home environment, current drug usage, current alcohol usage,
emotional stability, past employment, general reputation, marital stability, family
responsibility [or] attitude of law enforcement” in determining her amenability for correction.
See Markham, 755 S.W.3d at 853. Moreover, she asserts that the amenability to correction
section fails to mention any factors favoring her, including her admission that selling
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prescription drugs “was a wrongful act that she will not repeat.” 3 The State does not
specifically address any of these issues, except to argue generally that amenability to
correction was one of the factors considered by the prosecutor.
Here, regarding the amenability to correction, the prosecutor noted that McCarter not
only sold the drugs on the two dates in question but also offered to sell hydrocodone tablets
in the future. The assistant district attorney general said that McCarter made statements on
the recording that her doctor had “upped her dosage,” that she was now prescribed eight pills
a day, that she currently had 300 pills, which she considered “plenty[,]” and that if a person
needed the pills she did not want them coming to her “four or five times a day” because that
would “be suspicious.” The prosecutor found that “the clear implication of these statements
[was] that the Defendant [was] willing to sell more pills in the future, but [did] not want to
do anything that would attract the attention of the police.” In conclusion, she gave “great
weight” to McCarter’s statements regarding the pills and her willingness to sell pills in the
future and concluded that McCarter was not amenable to correction.
We conclude that the prosecutor fully considered McCarter’s amenability to
correction. Although McCarter may disagree with the assistant district attorney general’s
finding that her statements indicated a willingness to commit similar drug offenses in the
future, we conclude that the prosecutor did not abuse her discretion in finding that McCarter
was likely to reoffend. See Carr, 861 S.W.2d at 856. A review of the denial letter shows that
the assistant district attorney general did, in fact, consider factors relating to her home
environment, past employment, and general reputation. Moreover, recent Tennessee
Supreme Court cases indicate that the prosecutor is under no obligation to consider all of the
factors in Markham. See McKim, 215 S.W.3d at 786-87; Bell, 69 S.W.3d at 176. Finally,
while the prosecutor does not mention any factors that favor McCarter in the amenability to
correction section, she does mention several factors favorable to pretrial diversion in her
denial letter, including McCarter’s positive social history, lack of criminal history, and her
physical and mental conditions. Accordingly, we conclude that McCarter is not entitled to
relief on these issues.
II. Prosecutor’s Abstract Statements. McCarter contends that the assistant district
attorney general abused her discretion because her denial letter “is replete with ‘rote
statements’” that attempt to bypass actually weighing the relevant factors. See State v. Holly
A. Hatcher, No. M2008-02042-CCA-R10-CO, 2010 WL 457491, at *6 (Tenn. Crim. App.,
at Nashville, Feb. 10, 2010) (holding that “more than a ‘rote statement’ that the negative
factors outweigh the positive factors is required” and that the prosecutor “must assign a
weight to each factor, both favorable and unfavorable, weigh the factors against each other,
3
We do not see evidence of such an admission by McCarter in the record on review.
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and reach a conclusion based on the relative weight of all factors”). In particular, she asserts
that the following statements by the prosecutor “exemplify the use of rote notations in lieu
of actual analysis” and “fail to show the true legal discernment required by our well-settled
law regarding pretrial diversion”:
(1) “The State gives credit to the Defendant for [social] attributes, but does
not find this factor to outweigh the other factors in this case.”
(2) “[T]he State does not find that [the Defendant’s] physical or mental
condition outweigh the other factors in this case.”
(3) “The State gives credit to the fact that the Defendant does not have a
criminal history, but does not find this factor to outweigh the other
factors in this case.”
Once again, the State does not specifically address this issue in its brief. However, after
reviewing the assistant district attorney general’s denial letter, we conclude that the
prosecutor did in fact “assign a weight to each factor, both favorable and unfavorable, weigh
the factors against each other, and reach a conclusion based on the relative weight of all
factors.” Id. McCarter is not entitled to relief on this issue.
III. Circumstances of the Offense and the Need for General Deterrence.
McCarter contends that the prosecutor abused her discretion by focusing on the
circumstances of the offense and the need for deterrence to justify the denial of pretrial
diversion where these factors did not possess such “overwhelming significance,” especially
given her positive social and criminal history. See McKim, 215 S.W.2d at 787. She also
asserts that the prosecutor failed to produce any evidence showing a factual basis for the need
for deterrence. See Pinkham, 955 S.W.2d at 960 (holding that a prosecutor is “required to
identify the factual basis and rationale for the decision to deny pretrial diversion” (citing
Winsett, 882 S.W.2d at 810; Hammersley, 650 S.W.2d at 355)). Finally, McCarter argues
that the prosecutor’s unsupported statement regarding the need for deterrence constitutes an
abuse of discretion, given the type of offenses at issue on this case. See State v. Heather
Richardson, No. M2010-01360-CCA-R3-CD, 2011 WL 303270, at *5-6 (Tenn. Crim. App.,
at Nashville, Jan. 25, 2011) (concluding that a single mother’s conduct of selling drugs twice
in a single day was not “so prolonged or egregious [as] to implicate the need for deterrence
or necessity of protecting the public from her” given the strong factors favoring pretrial
diversion), perm. to appeal granted (Tenn. Aug. 24, 2011).
Initially, we note that “the circumstances of the offense and the need for deterrence
may alone justify a denial of diversion, but only if all of the relevant factors have been
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considered as well.” Curry, 988 S.W.2d at 158 (citing Washington, 866 S.W.2d at 951).
Here, the prosecutor specifically determined that the circumstances of the offense, the need
for deterrence, McCarter’s poor amenability to correction, and the ends of justice and the
interests of the public outweighed McCarter’s positive social history, lack of criminal history,
and her physical and mental conditions. Given that the prosecutor considered and weighed
all relevant factors in this case, we conclude that the denial of pretrial diversion was proper.
McCarter also contends that the prosecutor failed to produce any evidence showing
a factual basis for the need for deterrence. However, according to Pinkham, “the district
attorney general is simply required to identify the factual basis and rationale for the decision
to deny pretrial diversion.” Pinkham, 955 S.W.2d 960 (citing Winsett, 882 S.W.2d at 810;
Hammersley, 650 S.W.2d at 355). Accordingly, the prosecutor is under no obligation to
identify the factual basis for the need for deterrence, and McCarter is not entitled to relief on
this issue.
Finally, McCarter argues that the prosecutor abused her discretion in giving an
unsupported statement regarding the need for deterrence, especially given the type and
number of offenses at issue in this case. McCarter cites Heather Richardson, 2011 WL
303270, at *6, for the proposition that her conduct in this case was not so offensive that it
triggered the need for deterrence or the need to protect society from her. However, in
Heather Richardson, the prosecutor, under the mistaken belief that the defendant engaged in
multiple drug transactions over a period of two months, relied on the need for deterrence and
the interests of society in justifying the denial of pretrial diversion. Id. at *5. Upon
interlocutory review, this court concluded that the prosecutor failed to make findings on most
of the factors, failed to weigh the factors, and failed to state why the unfavorable factors
outweighed the favorable factors. Id. Moreover, the court recognized that although the
prosecutor acknowledged that the defendant had no criminal record and might be amenable
to correction, he neither discussed the weight given to this factor nor explained how this
factor was outweighed by the negative factors. Id. Ultimately, the court reversed the order
affirming the prosecutor’s denial and remanded the case to the trial court with instructions
to order the prosecutor to approve the defendant’s application for pretrial diversion. Id. at
*6. It is evident that the prosecutor’s problematic findings in Heather Richardson vary
dramatically from the prosecutor’s findings in the instant case. Because the prosecutor
considered and weighed all relevant factors in McCarter’s case, we conclude that the denial
of pretrial diversion was proper.
IV. Absence of “Substantial Evidence” to Support Denial. McCarter argues that
the prosecutor based her denial on facts not “supported by substantial evidence.” See
McKim, 215 S.W.3d at 788 (“‘[T]he trial court should examine each relevant factor in the
pretrial diversion process to determine whether the district attorney general has considered
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that factor and whether the district attorney general’s finding with respect to that factor is
supported by substantial evidence.’” (quoting Yancey, 69 S.W.3d at 559)). Specifically,
McCarter takes issue with the prosecutor’s finding that she would continue to defraud her
physicians in order to illegally sell these drugs. She asserts that there was no “substantial
evidence” showing that she was defrauding her doctors and that her medical records show
“the legitimacy of [her] pain medication.” She also takes issue with the prosecutor’s finding
that she was not amenable to correction because of her statement that she had “plenty” of
pills since there was no other evidence that she was likely to reoffend. The State again does
not address these issues on appeal.
McCarter argues that there was no “substantial evidence” that she was defrauding her
doctors. She also contends that her prescriptions were legitimate. After reviewing the
record, we conclude that it is unlikely that McCarter was completely honest with her
prescribing physicians. If she had been, she would have needed all of the medication to
alleviate her own pain and would not have possessed a large reserve of pain medication that
she was willing to sell to others. Upon review, we conclude that the prosecutor’s evaluation
of McCarter’s conduct regarding the sale of drugs prescribed to her was supported by
substantial evidence.
Other than the prosecutor’s finding that she was not amenable to correction because
she had “plenty” of pills, McCarter contends that there was no other evidence that she was
likely to reoffend. The prosecutor’s denial shows that McCarter was not amenable to
correction because she sold drugs to the confidential informant on two different dates,
offered to sell the confidential informant hydrocodone tablets in the future, stated that her
doctor had “upped her dosage” to eight pills a day, and said that she did not want people
buying pills from her “four or five times a day” because that would “be suspicious.” The
prosecutor concluded that McCarter’s statements at the time of the offenses indicated that
she would reoffend. Although McCarter may not agree with the prosecutor’s finding, we
cannot conclude that the prosecutor’s finding is not supported by substantial evidence.
Accordingly, McCarter is not entitled to relief on this issue.
CONCLUSION
Upon review, we affirm the judgment of the trial court.
______________________________
CAMILLE R. McMULLEN, JUDGE
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