The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1999 SESSION FILED
July 8, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellant, ) C.C.A. No. 02C01-9805-CC-00158
)
v. ) Madison County
)
JAMES M. JANSEN and ) Honorable W hit Lafon, Judge
SCOTT R. LUCKMAN, )
) (State Appeal)
Appellees. )
FOR THE APPELLANT: FOR THE APPELLEES:
John Knox Walkup Mike Mosier
Attorney General & Reporter 204 West Baltimore
P. O. Box 1623
Marvin E. Clements, Jr. Jackson, TN 38302-1623
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
James G. Woodall
District Attorney General
Shaun A. Brown
Assistant District Attorney General
225 Martin Luther King Drive
P. O. Box 2825
Jackson, TN 38302-2825
OPINION FILED: __________________________________
REVERSED AND REMANDED
JAMES C. BEASLEY, SR., SPECIAL JUDGE
OPINION
On June 5, 1995, the Madison County grand jury returned an indictment charging
the defendants, James M. Jansen and Scott R. Luckman, with storage of liquor for sale,
a Class A misdemeanor. The indictment charged a third defendant with unlawful sale of
alcoholic beverages. Jansen and Luckman sought pretrial diversion. The district attorney
general’s denial of their application was reversed by the trial court after a certiorari hearing.
In this Rule 9 appeal, the State argues that the trial court erred in ordering pretrial diversion
for the defendants. Following a review of the record and applicable authorities, we reverse
the trial court’s entry of pretrial diversion as to each defendant and remand the case for
further proceedings.
The Department of Correction Investigation Report filed in support of the
defendants’ application for pretrial diversion includes the following “official version:”
On 2-25-95 . . . During a search of the premises known as
“Planet Rock” Club, located at 702 Old Hickory Blvd. in
Jackson, Tennessee, I found and seized several gallons of
intoxicating liquors in the office and behind the bar. I had
earlier received information from Special Agent Bond Tubbs,
TABC that he had purchased liquor inside the club on the
same date and seen liquor served to other persons in the club.
I know SA Tubbs to be a reliable person. I also found James
Jansen and Scott Luckman on the premises in the role of club-
owner/operator.
The defendants elected not to submit a statement for the report. However, their attorney’s
letter to the district attorney general requesting diversion asserts the following:
As you probably know, these gentlemen are partners in the
business which owns Planet Rock, where the criminal offense
with which they are charged allegedly occurred. They are
charged with unlawful sale of an alcoholic beverage, and there
would be proof that some beverages were sold by some
individual in the club. Both of my clients deny that the persons
selling the alcohol on that occasion were employees of theirs,
and they also deny authorizing any of their employees to make
such illegal sales. It appears that their crime might be one of
negligence and not being fully aware of what was going on at
their place of business. I think that pre-trial diversion would be
a fair way to resolve this matter, and it would enable both of
these gentlemen to lead productive lives without a criminal
conviction being on their record.
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The letter also relates that defendant Jansen is 44 years of age and was honorably
discharged after serving six years in the United States Navy. He is a college graduate and
is described as a prominent businessman with no prior criminal record. According to the
application letter, defendant Luckman is 28 years old and a high school graduate with no
prior criminal record. He comes from a large family who his attorney believes will be
supportive. Finally, it is asserted in the letter that the presentence reports reflect favorably
upon the character of each defendant. From our examination of these reports, the only
additional information we find possibly relevant to character assessment is that defendant
Luckman pays child support. There were no letters of recommendation or other
documentation showing suitability for diversion submitted on behalf of either defendant.
By letter dated October 4, 1995, the district attorney general gave the following
reasons for denying pretrial diversion:
1. It is the defendant’s responsibility to provide this office
with sufficient evidence of his qualifications for pretrial
diversion. The defendant has failed to provide this
office with any evidence and having failed in this
obligation the defendant cannot be granted pretrial
diversion. State v. Herron, 767 S.W.2d 151 (Tenn.
1989).
2. The defendant’s crimes were not the result of impulse
but required considerable effort and planning. State
v. Holland, 661 S.W.2d 91 (Tenn. Crim. App. 1983).
3. The defendant has expressed no remorse for his
conduct nor has he made any effort to make his victim
whole. State v. Nease, 713 S.W.2d 90.
4. Violations of the law, as it pertains to alcohol are
serious problems in this jurisdiction and allowing the
defendant to participate in pretrial diversion would
greatly undermine law enforcement efforts at
curtailing this type of criminal activity. State v.
Holland.
5. There is no indication that the defendant would have
stopped his/her criminal activity but for the
intervention of law enforcement. State v. Markham,
755 S.W.2d 850.
6. The Planet Rock continuously demonstrates flagrant
disregard for selling alcohol to minors or fails to
exercise the slightest degree of caution to insure that
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no alcoholic beverage is sold to minors from its
establishment. Numerous underage drinkers have
been arrested for alcohol violations associated with or
near the property of the Planet Rock. It would be
egregious affront to our justice system to continue to
prosecute underage drinkers but allow the owners and
operators of the establishment to slide through our
justice system with less than even a slap on the wrist.
On 9/29/95 a homicide occurred from a beating on or
near the Planet Rock. The defendant in that case had
been inside the Planet Rock and obviously had been
drinking. The defendant is 19 years old.
The owners of the Planet Rock have no regard for the
law as it applies to alcohol and should be denied Pre-
trial Diversion.
Nine months later, the defendants filed a petition for writ of certiorari, alleging that
they met all of the statutory criteria for pretrial diversion and arguing that the district
attorney general abused his discretion in failing to agree to a reasonable diversion
program.
A certiorari hearing was held August 14, 1996. Defendant Jansen was present. It
was announced that defendant Luckman was in East Tennessee and his appearance was
waived by the trial court. During the course of the hearing, the assistant district attorney
general explained the charges and entered into evidence a copy of the district attorney
general’s letter denying diversion. The presentence reports and counsel’s letter to the
district attorney general requesting diversion were introduced into evidence by the defense.
Counsel for the defendants summarized the contents of his letter to the district attorney
general and then explained his clients’ position as follows:
MR. MOSIER: Your Honor, what Mr. Jansen and Mr. Luckman
were doing, they believe that the statute says that it prohibits
the sale of liquor, and they had bottles of liquor setting out and
were giving the liquor away, and I think there was some liquor
that was seen behind the bar, but there were just a couple of
bottles out on the table that --
After inquiring as to the quantity and type of whiskey involved, the trial court ruled
as follows:
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THE COURT: If I understand it now, these people had a
nightclub some place here and had a bunch of whiskey,
several gallons or cases of whiskey out there, and they are
charged with illegal stored whiskey; is that right? For the
purpose of resale.
MR. BROWN: Yes, sir. It’s several gallons is all I know of. I
don’t know what kind.
THE COURT: All right. I’m going to allow pretrial diversion.
MR. MOSIER: Your Honor, I’ll prepare the Order.
DEFENDANT JANSEN: Thank you, Your Honor.
THE COURT: Don’t thank me now. Don’t come back in here
because you had a borderline deal. You understand?
DEFENDANT JANSEN: Yes, sir.
The record includes two orders entered by the trial court on April 28, 1998, slightly
over twenty months after the court’s ruling. The order “approved for entry” by the State
grants pretrial diversion, “It being shown to the Court that the defendant should be granted
pre-trial diversion.” Contrasting that order is the order “approved for entry” by the
defendants which is as follows:
THIS CAUSE came on to be heard upon the Petition for Writ
of Certiorari filed by the Defendants seeking review of the
District Attorney’s refusal to enter into a Memorandum of
Understanding placing the Defendants on the pre-trial
diversion program. After a careful review of the record, the
Court finds that the District Attorney General has abused his
discretion in denying pre-trial diversion to the Defendants, for
the following reasons:
1. The Defendants have provided sufficient evidence, in the
form of a pre-sentence report and a letter from their defense
counsel to establish their qualifications for pre-trial diversion.
2. There is no proof in the record to establish the reasons
given by the District Attorney as reasons for denying pre-trial
diversion.
3. The record fails to reveal that the District Attorney
considered the circumstances of the offense, the Defendants’
criminal records, social history and present conditions,
including mental and physical conditions where appropriate,
the deterrent effect of punishment upon other criminal activity,
the Defendants’ amenability to correction; the likelihood that
diversion would serve the ends of justice and the best interests
of both the public and the Defendants; and the Defendants’
attitudes, behavior since arrest, prior records, home
environments, current drug usage, emotional stability, past
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employment, general reputation, marital stability, family
responsibility, and attitude toward law enforcement. State v.
Lutry, 938 SW2d 431 (1996).
4. The District Attorney General failed to articulate why the
factors which he assigned in his denial outweigh the evidence
offered by the Defendants in support of pre-trial diversion.
State v. Kirk, 868 SW2d 739 (1993).
IT IS, THEREFORE, ORDERED that the District Attorney
General is directed to enter into a Memorandum of
Understanding with each of the Defendants placing them on
the pre-trial diversion program.
As heretofore noted, the court’s ruling as reflected in the transcript of the certiorari
hearing is limited to the statement, “All right, I’m going to allow pretrial diversion.” When
there is a conflict between the court minutes and the transcript of the court’s oral
statements, the transcript of the proceedings controls. State v. Moore, 814 S.W.2d 381,
383 (Tenn. Crim. App.), per. app. denied (Tenn. 1991).
A defendant is statutorily qualified for pretrial diversion if he or she has not
previously been granted diversion; does not have a prior misdemeanor conviction for which
confinement was served or a prior felony conviction within a five-year period after
completing the sentence of probationary period for the conviction; and is not seeking
diversion for a Class A or B felony, a sexual offense, driving under the influence, or
vehicular assault. Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(c) (Supp. 1998). Statutory
qualification, however, does not presumptively entitle a defendant to diversion. Rather, the
district attorney general possesses the discretion to grant pretrial diversion to a statutorily
qualified defendant. State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997). The defendant
bears the burden of demonstrating suitability for pretrial diversion, and, to that end, the
defendant should file a formal written application and supporting documents. State v.
Herron, 767 S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806, 809-10
(Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994). In considering a defendant’s
application for diversion, the district attorney general must weigh the following relevant
considerations: the defendant’s amenability to correction; the circumstances of the
offense; the defendant’s criminal record; the defendant’s social history; the defendant’s
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physical and mental condition “where appropriate”; and “the likelihood that pretrial diversion
will serve the ends of justice and the best interest of both 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)).
If the district attorney general denies pretrial diversion, the denial must clearly
articulate in writing the factors and evidence that were considered and the weight accorded
to each of the factors. Pinkham, 955 S.W.2d at 960; Herron, 767 S.W.2d at 156. “That
a defendant, obviously, bears the burden of demonstrating suitability for diversion does not
relieve the prosecutor’s obligation to examine all of the relevant factors and to set forth the
required findings.” State v. Curry, 1999 WL 115113, ____ S.W.2d ____ (Tenn. 1999)
(citing Pinkham, 955 S.W.2d at 960). Failure “to consider and articulate all of the relevant
factors constitutes an abuse of discretion.” Curry, 1999 WL 115113, at *6. The State’s
response to an application for pretrial diversion must reflect that the district attorney
general considered all of these factors. Id., at *4; see Herron, 767 S.W.2d at 156.
If the district attorney general denies diversion, the defendant may seek review by
the trial court through a petition for writ of certiorari. See Tenn. Code Ann. § 40-15-
105(b)(3) (Supp. 1998). In reviewing the district attorney general’s decision, the trial court
is limited to the evidence originally considered by the district attorney general. Winsett,
882 S.W.2d at 810. “The trial court may conduct a hearing only to resolve any factual
disputes raised by the prosecutor or the defendant concerning the application, but not to
hear additional evidence that was not considered by the prosecutor.” Curry, 1999 WL
115113, at *4 (citing Pinkham, 955 S.W.2d at 960).
Since the diversion statute vests discretion with the district attorney general and not
with the trial judge, the relevant question for the trial judge is not whether he thinks the
applicant is entitled to pretrial diversion, but whether the district attorney general abused
his discretion. Thus, not only is the trial judge to confine his consideration to the evidence
considered by the district attorney general at the time he considered the application, but
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he must also confine his review to the reason or reasons given by the district attorney
general at that time. State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985); State
v. Poplar, 612 S.W.2d 498, 500 (Tenn. Crim. App. 1980).
The district attorney general’s decision denying diversion is presumptively correct,
and the trial court must affirm his or her decision absent abuse of discretion. See Curry,
1999 WL 115113, at *4; State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App. 1996).
Before the trial court can conclude the district attorney general abused his or her discretion,
the record “must show an absence of any substantial evidence” to support the district
attorney general’s denial of diversion. Curry, 1999 WL 115113, at *4. If the trial court’s
decision is appealed, the appellate court is limited to determining whether the trial court’s
decision is supported by a preponderance of the evidence. Id. (citing Pinkham, 955
S.W.2d at 960).
In the instant case, the record fails to show that the trial court based its ruling on a
finding of abuse of discretion by the district attorney general but, to the contrary, reflects
that the trial court substituted its judgment for that of the district attorney general in what
it considered a “borderline deal.” By doing so, the trial court erroneously assumed a role
vested exclusively in the district attorney general. Tenn. Code Ann. § 40-15-105; Poplar,
612 S.W.2d at 500.
The evidence in the record does not preponderate in support of the trial court’s
decision overruling the district attorney general and granting pretrial diversion. On the
other hand, the evidence shows that, after considering the pretrial diversion reports
submitted in support of the defendants’ application, the district attorney general detailed
six reasons for his denial of pretrial diversion.
Accordingly, we reverse the order placing the defendants on pretrial diversion and
remand this case to the trial court for further proceedings.
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________________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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