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State v. Malone4/25/2005
I. Facts & Procedural History
On November 24, 1997, the defendant, Daniel Shane Malone, was indicted for three counts of statutory rape and two counts of contributing to the delinquency of a minor. Thereafter, the trial court ordered an investigation to determine whether the defendant was a suitable candidate for pretrial diversion. The pretrial investigation report indicated that the defendant, who was twenty-one years old at the time of the alleged offenses, had sexual intercourse with the victim, a fifteen-year-old girl, on three separate occasions. According to the report, the victim's affidavit of complaint alleged that the defendant provided her with alcohol before each sexual encounter, as well as marijuana on one occasion. The victim also asserted that she became pregnant and later had a miscarriage. The report indicated that the defendant denied the victim's allegations that he provided her with alcohol and marijuana. The report also indicated that the defendant had no prior criminal history, and had worked in his father's masonry business since he was seventeen years of age.
After the initial investigation report was completed, but before the defendant filed an application for pretrial diversion, the prosecutor denied pretrial diversion. In denying pretrial diversion, the prosecutor, in his first written response, simply cited the circumstances of the offense, need for deterrence, and the defendant's failure to provide information supporting his candidacy for pretrial diversion. However, the prosecutor's denial letter was proffered before the defendant applied for pretrial diversion.
The defendant sought review of the prosecutor's denial via writ of certiorari. The trial court granted the defendant's writ of certiorari, held a hearing on the matter, and by order declared that "the defendant should be granted diversion because the defendant is charged with a Class E felony, the defendant has no prior criminal record, and the defendant is 21 years of age." Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State was granted permission for an interlocutory appeal to this Court. On appeal, this Court determined that the trial court failed to properly review the prosecutor's decision for abuse of discretion. Therefore, this Court reversed the trial court's decision, and remanded the case for further proceedings. State v. Daniel Shane Malone, No. W1999-01678-CCA-R9-CD (Tenn. Crim. App. at Jackson, Nov. 8, 2000). Permission to appeal to the Tennessee Supreme Court was sought and denied.
On February 21, 2003, the defendant filed an application for pretrial diversion along with twelve letters of good character submitted by family and friends. On March 25, 2003, an additional pretrial report was submitted. The report indicated the same findings as the original, but included updated information concerning the defendant's family status * married with two children. The report also included an updated record of the defendant's employment status. According to the report, the defendant was currently employed as manager of a Popeye's restaurant, and had been employed by Wendy's restaurant and ACE T.V. Rental as an assistant manager during the interim appellate process. The prosecutor, by letters, denied the defendant's application for pretrial diversion. The letters state the following:
I have considered Daniel's age, academic record, employment history, criminal history, the nature of the crime and the need for deterrence and have concluded that entering into a pretrial diversion agreement with Daniel would not be in the best interest of society.
I place no weight on Daniel's age either for or against diversion. D
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