State v. Pinkham

• Decision Date: 17 November 1997
• Citation: 955 S.W.2d 956
• Parties: STATE of Tennessee, Appellee, v. Charles A. PINKHAM, Jr., Appellant.
• Court: Tennessee Supreme Court

Page 956

955 S.W.2d 956

STATE of Tennessee, Appellee, v.Charles A. PINKHAM, Jr., Appellant.

Supreme Court of Tennessee at Jackson.

Nov. 17, 1997.

Larry Rice, Memphis, for Appellant.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Nashville, Judson W. Phillips, Lee V. Coffee, Assistant District Attorneys General, Memphis, for Appellee.

OPINION

BIRCH, Justice.

We granted the application for permission to appeal filed by Charles A. Pinkham, Jr., in order to determine the extent to which the district attorney general must disclose on the record the evidence relied upon to reject an application for pretrial diversion.¹

We find that the district attorney general has a duty to include in the record the factual basis and rationale for denying diversion.If, in petitioning the trial court for review of the diversion decision, the petitioner contests the facts upon which the district attorney general relied, then the trial court should hold an evidentiary hearing to resolve the factual dispute.The trial court should not consider any evidence shown to be materially false or obtained in violation of constitutional rights as it determines whether the district attorney general abused his or her discretion in rejecting the pretrial diversion application.

In the case under submission, Pinkham did not challenge the evidence relied upon by the district attorney general.Rather, he contended that a portion of it was irrelevant, remote, and unreliable.Our review of this evidence leads us to conclude that the district attorney general did not abuse his discretion in denying pretrial diversion.For the reasons herein stated, the judgment of the Court of Criminal Appeals is affirmed.

I

The record establishes that Pinkham, at the time not licensed to practice law in any jurisdiction, prepared and supervised the execution of the will of Hilda Bratton.After Bratton's death, proceedings to contest the will were initiated.Because the will had not been properly attested, Bratton's estate passed according to the law of intestacy, and the intended beneficiaries received approximately $90,000 less than they would have received had the will been admitted to probate.During the will contest, Pinkham was asked by the trial court if he was an attorney licensed to practice in Tennessee.Pinkham responded that he was so licensed; this response was untrue.

Subsequently, Pinkham was indicted for falsely representing himself as a lawyer, ² impersonating a licensed professional, ³ and aggravated perjury.⁴As permitted by Tenn.Code Ann. § 40-15-101 et seq.(1991), Pinkham applied to the district attorney general for pretrial diversion.

His application shows that Pinkham is the fifty-five-year-old married father of two.As a youth, he attained the Eagle rank in scouting, excelled in athletics, and served as a president of the student body of his high school.He attended the University of California and graduated with a degree in business.He then entered law school at Golden Gate University and graduated as one of the top students of his class.Pinkham was admitted to the practice of law in California.

Pinkham states that in 1983he became addicted to alcohol.This disease, he says, caused him to neglect his law practice.In 1986, he surrendered his California law license and was admitted to a ten-week inpatient rehabilitation program.Upon release from this program, Pinkham and his family relocated to Memphis, where he obtained employment as a financial planner.

Pinkham's application is replete with letters of support from individuals in the community.It is clear that he has devoted substantial time and energy to his church and the community.

After considering Pinkham's application, the district attorney general rejected his application for pretrial diversion and gave the following explanation:

A.The circumstances of the case indicate that the defendant engaged in a systematic and continuing criminal activity....

....

Having engaged in the unauthorized practice of law, Mr. Pinkham compounded [the] original criminal behavior by lying under oath when questioned by Judge Southern--some ten months later....In addition to committing three (3) separate offenses for which he is indicted, Mr. Pinkham has a fourth uncharged offense in which he contracted to prepare another Will for a Charles E. Shartle on March 23, 1993.

B.The magnitude of the losses suffered by the victim mandate against Mr. Pinkham's application for diversion....The actual or/and potential amounts of restitution are so enormous that pre-trial diversion is not only inappropriate but also impractical.

C.I believe further that Mr. Pinkham is not a suitable candidate for pre-trial diversion because Mr. Pinkham, unfortunately, has a history of dishonesty and unethical behavior.Mr. Pinkham voluntarily resigned from the California Bar on December 31, 1986, while a disciplinary proceeding was pending to disbar Mr. Pinkham.The State of California alleged that Mr. Pinkham: engaged in professional misconduct; violated his oath and duties as an attorney; misappropriated or converted client funds; abandoned his clients; and/or committed acts involving moral turpitude, dishonesty and/or corruption.Having voluntarily surrendered his California law license, Mr. Pinkham engaged in the criminal and egregious conduct which led to his current indictments....Lastly, Mr. Pinkham continued to demonstrate an inability or unwillingness to tell the truth when he spoke with an investigator with the Attorney General's office on November 23, 1993....

D.There is an overwhelming need for deterrence in this case....We must deter individuals from unlawfully engaging in the unauthorized practice of law.If this defendant were placed on diversion, other citizens may be encouraged to practice law without a license.Other individuals may receive a false message that, if detected engaging in the practice of law without a license, the punishment is minimal.We cannot send a message to this community that a defendant will not be punished if that defendant has the financial wherewithal to "buy his way out of trouble."We shall not send a message that the Attorney General condones a defendant's intentionally lying to a Judge....

In making this decision to reject the defendant's diversion application, I have considered that Mr. Pinkham is a 50 year old man with no criminal record.I have considered his exemplary social history.I have considered that Mr. Pinkham appears to be a leader in his community, as evidenced by the character and reference letters from lawyers, teachers, professors, ministers, doctors, et al.I have considered all of the parameters of Mr. Pinkham's social, family, personal, educational and professional background.

I have weighed all those factors in deciding whether the interests of justice would be served best by placing Mr. Pinkham on diversion.I have concluded that the interests of the public substantially outweigh the interests of the defendant.Since Mr. Pinkham is a highly educated person who holds a law degree, Mr. Pinkham knew that his conduct was unlawful and unethical.Unquestionably, Mr. Pinkham made a deliberate choice to violate the law.Having violated the criminal laws of the State of Tennessee, Mr. Pinkham made an unconscionable decision to engage in a continual pattern of deception and dishonesty.Mr. Pinkham deliberately chose to engage in systematic and continual pattern of criminal activity....Sadly, Mr. Pinkham's actions demonstrate a continuation of the unethical, unprofessional and illegal conduct which caused him to lose his California Law license.

After considering and weighing all the factors enumerated above, I must deny the application for diversion of Charles A. Pinkham, Jr....

II

The decision to grant or deny pretrial diversion is a discretionary one that lies with the district attorney general.Pace v. State, 566 S.W.2d 861, 864(Tenn.1978).The district attorney general must consider all relevant factors in making his or her...