In Re Dontavis K.W.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 25, 2015 Session
IN RE: DONTAVIS K.W.
Appeal from the Criminal Court for Hamilton County
No. 291544 Don W. Poole, Judge
No. E2014-01285-COA-R3-JV-FILED-MAY 26, 2015
Dontavis K.W. (“Defendant”) appeals the order of the Criminal Court for Hamilton
County (“the Criminal Court”) committing him to the custody of the Department of
Children’s Services (“DCS”) for an indefinite term based upon findings of delinquency
and violation of probation. We find and hold that pursuant to Tenn. R. Juv. P. 35 and
Tenn. Code Ann. §§ 37-1-131(a)(4) and 37-1-137(a)(1)(A) the Criminal Court did not err
in the probation revocation proceeding when it ordered a disposition which would have
been permissible in the original delinquency proceeding. We, therefore, affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.
David C. Veazey, Chattanooga, Tennessee, for the appellant, Dontavis K.W.
Herbert H. Slatery, III, Attorney General and Reporter; and John H. Bledsoe, Senior
Counsel for the appellee, State of Tennessee.
OPINION
Background
Defendant was placed on probation on November 21, 2011 as a delinquent based
upon a plea of guilty to possession of marijuana. Defendant was 14 years old at that
time. Defendant’s probation was extended multiple times during 2012 and 2013 for
violations of probation. Defendant pled guilty on April 23, 2014 to three counts of
violation of probation, and the Juvenile Court for Hamilton County (“the Juvenile
Court”) found beyond a reasonable doubt that Defendant was delinquent for resisting
arrest, vandalism, and three counts of violation of probation and committed Defendant to
DCS custody for an indefinite term.
Defendant appealed the Juvenile Court’s order to the Criminal Court for a de novo
hearing. Victoria May Riddle, Defendant’s juvenile probation officer, testified at the
hearing. Ms. Riddle explained that Defendant initially was placed on probation on
November 21, 2011 after pleading guilty to possession of marijuana, and that two days
later, on November 23, 2011, Defendant was arrested for domestic assault with regard to
an incident “that involved him choking his mother.” Ms. Riddle testified that Defedant
was found guilty of domestic assault.
Ms. Riddle testified that in December of 2011 Defendant’s mother filed a petition
alleging that Defendant was in violation of his probation for unruly behavior including
failure to abide by curfew, coming and going without permission, and using marijuana.
Ms. Riddle testified that the December 2011 petition was heard on March 20, 2012, and
Defendant’s probation was extended until December 31, 2012. Additionally, Defendant
was ordered to do 36 hours of public service and obtain anger management counseling,
among other things.
Ms. Riddle testified that another petition alleging a probation violation was filed
on December 31, 2012 based upon Defendant’s failure to complete his public service
hours and his anger management counseling. Ms. Riddle stated that the December 2012
petition was heard in January of 2013, and that Defendant was adjudicated delinquent and
his probation was extended for three more months. Defendant also was ordered to
complete his previously assigned public service hours and anger management counseling
within a specified time period.
Ms. Riddle testified that another petition alleging violation of probation was filed
on April 26, 2013 for Defendant’s failure to complete anger management counseling. At
that time Defendant had 12 public service hours remaining. Ms. Riddle testified that the
April 2013 petition was heard in May of 2013, at which time a private attorney was
appointed to represent Defendant, the case was continued, and Defendant’s probation was
extended until the next hearing.
Ms. Riddle’s supervision of Defendant ended when Defendant was placed in DCS
custody on April 23, 2014. Ms. Riddle was asked whether Defendant had complied with
the conditions of his probation during the time period from December of 2013 through
April 23, 2014 during which she was supervising him, and she stated:
He didn’t comply. He was - - he didn’t follow the rules of - - the
simple rules that we had set which was contacting me on a weekly basis,
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coming in to see me was a problem. He was still using - - or smoking
marijuana, and also at some point he was also drinking alcohol, she1
admitted to me in an office - - in one of the office visits he did come to.
School is a big - - was a big issue with him. He was always getting
suspended. And there were times he did not - - there was one point he did
not show up for court either, and the magistrate issued an attachment from
the bench for him as a result of that.
Ms. Riddle was asked if Defendant ever told her why he had failed to show up for court,
and she stated: “He did not, but his mother had mentioned that he just refused to come.
She tried to get him to come to court, asked him several times, and he refused to - - to
obey her and obey the Court and come to the court hearing.”
Ms. Riddle testified that Defendant’s mother was able to bring Defendant in later
on the day that the magistrate issued the attachment. Ms. Riddle explained:
[W]hen the magistrate signs off on the attachment, it’s saying that there is a
legitimate reason to execute it and that the child can be picked up at any
time, once he is found, and brought to the juvenile detention center.
Once they’re in the juvenile detention center, they have what’s
called a detention hearing the very - - at least the very next day. At times it
can be the same day. It’s just according to what time they arrive at the
court or at the juvenile detention center. And then at that time it’s decided -
- the magistrate decides whether or not the child should be held in the unit
till the next court date or if he can be - - or if that child can be released
home under whatever conditions the Court may desire.
Ms. Riddle testified that Defendant was held at the detention center. She stated that he
was held “almost one month. It was right at one month.”
Ms. Riddle testified about what happened during the hearing held to determine
whether to hold Defendant at the detention center stating:
[T]he Court was trying to decide how long to hold him in - - in the
detention center. And when they were discussing it, they came out with the
court date which was about a month later, it was right at a month later, and
1
It is unclear from the record on appeal whether Ms. Riddle was referring to Defendant’s mother or
whether this is a typographical error meant to refer to Defendant. It is not relevant to our analysis of the
issue on appeal that we determine exactly to whom Ms. Riddle was referring when she made this
statement.
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when he heard that, he actually began to act out. He started yelling and
cursing, calling the magistrate obscenities, tried to get up out of the chair
even though he was shackled.
He was also approached, when that occurred, by a court officer. The
court officer had to make him sit back down in the chair. As the court
officer was doing that, he also yelled profanities and - - toward the court
officer and was screaming - - using profanity, talking about not being held
for a month till the next court date.
Ms. Riddle testified that Defendant never completed his anger management counseling or
his remaining 12 public service hours.
After a hearing, the Criminal Court entered its order on July 11, 2014 nunc pro
tunc to June 30, 2014 finding and holding, inter alia:
2) That the defendant-juvenile’s probation had been extended multiple
times for failure to cooperate, being unruly and using marihuana [sic], not
completing anger management, not following the rules of probation
including not contacting his probation officer, continually smoking
marihuana [sic], not attending school, using alcohol, not showing up for
court after being summons [sic] in to court at which time he refused to
come to court and acting out at court by yelling, cursing.
3) That the defendant-juvenile did in fact plead guilty to the three (3)
violations of probation on April 23, 2014.
That based upon the foregoing, the continual violations of probation,
it is determined that the juvenile-defendant is in need of treatment and
rehabilitation and should be committed to D.C.S./J.J.D. for an indefinite
period of time . . . .
Defendant appeals the order of the Criminal Court committing him to the custody of DCS
for an indefinite term.2
Discussion
The dispositive issue in this case is whether the Criminal Court erred in
2
Defendant filed his appeal with the Court of Criminal Appeals. By order entered July 11, 2014 the
Court of Criminal Appeals transferred the appeal to this Court pursuant to Tenn. R. App. P. 17 because
jurisdiction over appeals of criminal court orders concerning de novo appeals of juvenile court judgments
in delinquency proceedings lies with the Court of Appeals. Tenn. Code Ann. § 37-1-159(c) (2014).
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committing Defendant to the custody of DCS for violation of probation. This issue
presents a question of law, which we review de novo with no presumption of correctness.
S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
Analysis of the issue on appeal involves interpretation of statutes and a rule of juvenile
procedure. Our Supreme Court has instructed:
When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998).
Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011). “Although the rules of
civil procedure are not statutes, the same rules of statutory construction apply in the
interpretation of rules.” Thomas v.Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009).
As pertinent to the issue now before us Tenn. R. Juv. P. Rule 35 provides:
Rule 35. Probation Revocation – Termination of Home Placement. –
(a) PROCEDURE. Proceedings to revoke probation shall be conducted in
the same manner as proceedings on petitions alleging delinquent or unruly
conduct. Proceedings to terminate home placement shall be conducted in
the same manner as proceedings on petitions delinquent or unruly conduct
and in accordance with Tenn. Code Ann. § 37-1-137. The child whose
probation or home placement is sought to be revoked shall be entitled to all
rights that a child alleged to be delinquent or unruly is entitled to under law
and these rules, except that the petition shall be styled “Petition to Revoke
Probation” or “Petition to Terminate Home Placement” and shall, in
addition to fulfilling the other requirements for petitions set forth in Rule 9,
state the terms of probation or home placement alleged to have been
violated and the factual basis for these allegations.
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(b) DISPOSITION IN REVOCATION OF PROBATION CASES. If the child
is found by a preponderance of the evidence to have violated a term of
probation, the court may:
(1) Extend the period of probation, or
(2) Make any other disposition which would have been permissible in
the original proceeding.
(c) DISPOSITION IN TERMINATION OF HOME PLACEMENT CASES.
Dispositions in termination of home placement cases shall be as provided in
Tenn. Code Ann. § 37-1-137.
Tenn. R. Juv. P. 35.
Two specific statutory sections are relevant to our analysis of the issue now before
us. In pertinent part, Tenn. Code Ann. § 37-1-131 provides:
37-1-131. Delinquent child – Disposition – Restitution.
(a) If the child is found to be a delinquent child, the court may make any of
the following orders of disposition best suited to the child’s treatment,
rehabilitation and welfare:
***
(4) Subject to the restrictions of § 37-1-129(e), commit the child to the
department of children’s services, which commitment shall not extend past
the child’s nineteenth birthday;
Tenn. Code Ann. § 37-1-131(a)(4) (2014). As pertinent, Tenn. Code Ann. § 37-1-137
provides:
37-1-137. Commitment of delinquent children to the department of
children’s services.
(a)(1)(A) An order of the juvenile court committing a delinquent child to
the custody of the department of children’s services shall be for an
indefinite time.
Tenn. Code Ann. § 37-1-137(a)(1)(A) (2014).
The plain and unambiguous language of Tenn. R. Juv. P. 35 provides that if a
court finds by a preponderance of the evidence that a child has violated probation, the
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court may “[m]ake any other disposition which would have been permissible in the
original proceeding.” Tenn. R. Juv. P. 35. In the case now before us the Criminal Court
found by a preponderance of the evidence that Defendant had violated probation, and, in
fact, had “plead guilty to the three (3) violations of probation on April 23, 2014.” Given
this, pursuant to Tenn. R. Juv. P. 35 the Criminal Court was free to “[m]ake any other
disposition which would have been permissible in the original proceeding.” Tenn. R.
Juv. P. 35. Under Tenn. Code Ann. § 37-1-131(a)(4), one of those permissible
dispositions was to “commit the child to the department of children’s services, . . . .”
Tenn. Code Ann. § 37-1-131(a)(4) (2014). Given all this, we find no error in the
Criminal Court’s order committing Defendant to the custody of DCS. We, therefore,
affirm the Criminal Court’s July 11, 2014 order.
Conclusion
The judgment of the Criminal Court is affirmed, and this cause is remanded to the
Criminal Court for collection of the costs below. The costs on appeal are assessed
against the appellant, Dontavis K.W.
_________________________________
D. MICHAEL SWINEY, JUDGE
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