In the Matter of: Matthew L. Powell ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
October 21, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
AT KNOXVILLE
IN THE MATTER OF: ) C/A NO. 03A01-9908-CR-00272
)
MATTHEW LANCE POWELL, )
A Minor Child Under the Age )
of 18. )
) APPEAL AS OF RIGHT FROM THE
) KNOX COUNTY CRIMINAL COURT
)
)
)
) HONORABLE RICHARD E.
BAUMGARTNER,
) JUDGE
For Appellant For Appellee
Matthew Lance Powell State of Tennessee
MARK E. STEPHENS PAUL G. SUMMERS
District Public Defender Attorney General and
Reporter
Sixth Judicial District Nashville, Tennessee
Knoxville, Tennessee
MARK E. DAVIDSON
PAULA R. VOSS Assistant Attorney General
Assistant Public Defender Nashville, Tennessee
Sixth Judicial District
Knoxville, Tennessee
Page 1
OPINION
REVERSED AND REMANDED Susano, J.
This is an appeal from an order of the Knox County
Criminal Court affirming the juvenile court’s order committing
18-year-old Matthew Lance Powell (“Powell”) to the custody of
the Department of Children’s Services for a determinate
sentence, i.e., to the child’s 19th birthday. 1 The sole issue
on this appeal is whether Powell was properly committed under
the terms of T.C.A. § 37-1-137, which provides, in pertinent
part, as follows:
If a juvenile offender is tried and
adjudicated delinquent in juvenile court
for the offense of first degree murder,
second degree murder, aggravated rape,
aggravated sexual battery, especially
aggravated kidnapping, aggravated robbery,
especially aggravated robbery, aggravated
arson, attempt to commit first degree
murder, or violations of § 39-17-417(b),
(i) or (j), or has been previously
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adjudicated delinquent in three (3) felony
offenses arising out of separate criminal
episodes at least one (1) of which has
resulted in institutional commitment to
the department of children’s services, or
is within six (6) months of the child’s
eighteenth birthday at the time of the
adjudication of the child’s delinquency,
the commitment may be for a determinate
period of time but in no event shall the
length of the commitment be greater than
the sentence for the adult convicted of
the same crime, nor shall such commitment
extend past the offender’s nineteenth
birthday.
T.C.A. § 37-1-137(a)(1)(B) (1996) (Emphasis added). Powell
contends that the two violations of probation, which were the
grounds for his determinate sentence, are not delinquent acts
and, therefore, there was no “adjudication of...delinquency”
by the juvenile court to warrant the imposition of a
determinate commitment.
I.
Powell, born May 11, 1981, was first adjudicated
delinquent by the Knox County Juvenile Court on June 6, 1995.
Page 3
At that time, the court found that he had committed the
delinquent acts of vandalism and burglary. The court placed
Powell on probation. On January 25, 1996, he was again
adjudicated delinquent for the offense of theft of property
and for violating the rules of probation by committing that
theft. Powell was placed on probation for these offenses. On
December 16, 1997, Powell was adjudicated delinquent for
simple possession of marijuana and theft of property and was
again placed on probation. On October 28, 1998, Powell was
adjudicated delinquent for violating the rules of probation by
testing positive for marijuana. At that time, the juvenile
court committed him to the custody of the Department of
Children’s Services; however, that commitment was suspended
and Powell was once again placed on probation.
In January, 1999, two petitions were filed against
Powell, alleging that he violated the rules of his probation.
Copies of these petitions are attached to this opinion as
appendices. The petitions alleged that he had violated the
rules of probation by: 1) testing positive for marijuana after
submitting to a random drug screen on January 7, 1999; and 2)
failing to page a Home Base worker for curfew check on January
11, 1999, and January 12, 1999. Powell waived his right to
counsel and pled true to these allegations. The juvenile
court appointed counsel to represent him at the dispositional
hearing. On April 7, 1999, a dispositional hearing occurred
before a referee of the Knox County Juvenile Court. At that
Page 4
time, the referee revoked the suspension of Powell’s
commitment to state custody, and committed him for a
determinate sentence. The referee found “on proof beyond a
reasonable doubt that said child is dependent and neglected
and is delinquent and is in need of treatment and
rehabilitation in that he violated the rules of his probation
by testing positive for marijuana.” Powell filed a motion for
a hearing before the Juvenile Court Judge, which hearing was
held on May 19, 1999. The Juvenile Court Judge confirmed the
referee’s order. Powell appealed the order of the juvenile
court to the Knox County Criminal Court. At a hearing on June
24, 1999, that court affirmed the juvenile court’s order of
commitment. This appeal followed. Powell requested an
expedited hearing, which we granted.
II.
Our review of this non-jury case is de novo upon the
record of the proceedings below; however, that record comes to
us with a presumption that the trial court’s factual findings
are correct. Rule 13(d), T.R.A.P. We must honor this
presumption unless we find that the evidence preponderates
against those findings. Id.; Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
conclusions of law, however, are not accorded the same
deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35
(Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.
Page 5
1993).
III.
We view the language of T.C.A. § 371-137(a)(1)(B)
under well-established rules of construction. Our role is to
ascertain and, if possible, give effect to the legislative
purpose or intent as expressed in the statute. Worrall v.
Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977). The legislative
intent or purpose is to be derived from the natural and
ordinary meaning of the language employed by the legislature
when read in the context of the whole statute. National Gas
Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991);
Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn. 1983).
“The language shall not be given any forced construction that
extends or places limitations upon the import of that language.
” James Cable Partners v. City of Jamestown, 818 S.W.2d 338,
341 (Tenn.App. 1991). If a statute is unambiguous, we should
limit our review to the words of the statute itself. Tennessee
Manufactured Hous. Ass’n v. Metro. Gov’t of Nashville, 798
S.W.2d 254, 257 (Tenn.App. 1990). We should presume that the
legislature chose its words carefully, and should give to them
their ordinary and usual meaning, id.; however, in deriving
the intent of the legislature, we do not derive that intent “
from single or special words in a sentence or section but from
the statute taken as a whole.” James Cable Partners, 818
S.W.2d at 342.
Page 6
T.C.A. § 37-1-137(a)(1)(B) provides that a juvenile
court may commit a child to the Department of Children’s
Services for a determinate sentence only under three
circumstances: if the child commits one of the crimes
specified in the statute; if the child has been previously
adjudicated delinquent for three felony offenses; or if the
child is within six months of his or her 18th birthday at the
time of the “adjudication of the child’s delinquency.” The
proof reflects, and the parties agree, that the first two
circumstances do not apply to this case. Thus, our focus is
on the third statutory ground for a determinate sentence.
At the time of the dispositional hearing, Powell was
17 years, 11 months old. The trial court concluded that
Powell was eligible for a determinate sentence, because, so
the court found, there had been an “adjudication of [his]
delinquency” within six months of his 18th birthday. Powell
contends that because a violation of probation is not a
delinquent act as defined by the applicable statute, a child
cannot be adjudicated delinquent for the purposes of T.C.A. §
37-1-137(a)(1)(B) on the basis of a violation of probation.
The state counters that Powell, through his “guilty plea,”
admitted, at least by implication, that he had possessed a
controlled substance. The state argues that since such an
offense would be a criminal offense if committed by an adult,
Powell’s violation of probation constitutes a delinquent act
Page 7
for the purposes of T.C.A. § 37-1-137(a)(1)(B).
To ascertain the meaning of the phrase “adjudication
of the child’s delinquency”, we turn to the definitions
provided by the legislature. A “delinquent act” is defined in
the statute as follows:
an act designated a crime under the law,
including local ordinances of this state,
or of another state if the act occurred in
that state, or under federal law, and the
crime is not [an offense applicable only
to a child] and the crime is not a traffic
offense as defined in the traffic code of
the state other than failing to stop when
involved in an accident pursuant to §
55-10-101, driving while under the
influence of an intoxicant or drug,
vehicular homicide or any other traffic
offense classified as a felony....
T.C.A. § 37-1-102(b)(9) (Supp. 1998). The phrase “adjudication
of delinquency” is defined as a finding by a juvenile court “
beyond a reasonable doubt that a child has committed a
delinquent act as defined in § 37-1-102, which is an act
designated a crime under the law....” T.C.A. § 37-5-103(2)
(1996).
It is clear that the third eligibility prong of
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T.C.A. § 37-1-137(a)(1)(B) requires a juvenile court to find
beyond a reasonable doubt that a child committed a delinquent
act as defined by T.C.A. § 37-1-102(b)(9). We disagree with
Powell’s position, as we understand it, that an adjudication
of a violation of probation is never sufficient to amount to
an “adjudication of [a] child’s delinquency.” Whether an
adjudication of a violation of probation is an adjudication of
a delinquent act depends on the basis for the violation. If
the basis for the violation of probation is a delinquent act
within the meaning of T.C.A. § 37-1-102(b)(9), i.e., a
criminal offense, then the finding beyond a reasonable doubt
that the child violated the rules of probation would
necessarily be an adjudication that the child committed a
delinquent act. On the other hand, if the basis of the
violation is not a delinquent act, i.e., not a criminal
offense, then a finding that the child violated the rules of
probation would not be a finding that the child committed a
delinquent act.
In the two petitions in the instant case, it was
alleged that Powell violated the rules of his probation by
testing positive for marijuana and by failing to report for a
curfew check. Neither of these acts are criminal offenses and
thus cannot be considered “delinquent acts.” The juvenile
court focused on the petition charging that Powell tested
positive for marijuana. As to that charge, we believe it is
clear that proof that an individual has tested positive for
Page 9
marijuana, standing alone, does not establish all of the
required elements of the crime of possession of marijuana.
Such proof does not establish when and where the marijuana was
possessed or how it was possessed or the other circumstances
of the alleged possession. Hence, proof of Powell’s positive
test does not make out the crime of possession of marijuana.
Accordingly, we find and hold that the lower courts
erred in committing Powell to state custody for a determinate
sentence.
IV.
For the foregoing reasons, the judgment of the Knox
County Criminal Court affirming the order of the Knox County
Juvenile Court committing Matthew Lance Powell to the custody
of the Department of Children’s Services for a determinate
sentence to age 19 is reversed. This case is remanded for
such additional proceedings as may be necessary, consistent
with this opinion. Costs on appeal are taxed to the appellee.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
Page 10
________________________
D. Michael Swiney, J.
Page 11