                                            C O U R T   O F    A P P E A L S           O F       T E N N E S S E E

                                                              A T       K N O X V I L L E                              FILED
                                                                                                                         March 25, 1998

                                                                                                                      Cecil Crowson, Jr.
                                                                                                                       Appellate C ourt Clerk
E R I C     E D W A R D S                                                      )       K N O X C O U N T Y
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D O U G L A S       A     T R A N T   O F     K N O X V I L L E     F O R          A P P E L L A N T

J O H N     K N O X       W A L K U P ,     A t t o r n e y    G e n e r a l           &     R e p o r t e r ,       a n d   M I C H A E L     J .

F A H E Y ,       I I ,     A s s i s t a n t     A t t o r n e y        G e n e r a l ,           O F   N A S H V I L L E     F O R     A P P E L L E E




                                                          O    P    I      N       I   O     N




                                                                                                                     G o d d a r d ,     P . J .




                          Eric L. Edwards appeals the Knox County Circuit Court’s

denial of his petitions for post-commitment relief.                                                                              The only

issue raised on appeal, which we restate, is whether Mr. Edwards

can avail himself of the remedies provided by the Juvenile Post-

Commitment Procedures Act, T.C.A. 37-1-301, et seq., though he is

neither a juvenile nor “in custody.”
                    Mr. Edwards was born on August 8, 1974.                                                In July 1992,

he was committed to the Department of Youth Development for

possession of cocaine for sale, simple possession of marijuana,

and driving a vehicle without a license.                                                The Knox County

Juvenile Court again found Mr. Edwards delinquent in June 1993

for the sale and delivery of a Schedule II narcotic and theft.

The Juvenile Court retained jurisdiction for all of the above

crimes and custody of Mr. Edwards until his 21st birthday.1



                    In February 1997, Mr. Edwards filed two petitions for

post-commitment relief in the Knox County Circuit Court.                                                                   He

moved that his prior juvenile delinquency convictions be vacated

on the grounds that his guilty pleas resulted from violation of

his constitutional rights.                                Mr. Edwards was 22 years old and no

longer in the custody of the Department of Youth Development when

the petitions for post-conviction relief were filed.



                    The Circuit Court heard legal arguments in April 1997

on the petitions filed.                             The Court found that Mr. Edwards was not

a juvenile at the time the petitions were filed, nor was the

petition for post-commitment relief filed before he was

discharged from the custody of the Department of Youth

Development.                 Interpreting the Juvenile Post-Commitment

Procedures Act, T.C.A. 37-1-301, et seq., according to its plain

meaning, the Court denied both petitions since Mr. Edwards was no

longer in custody or a juvenile.                                       The petitions were consolidated




          1
                      S t a t e E x R e l . A n g l i n v . M i t c h e l l ,   5 9 6 S . W . 2 d 7 7 9 ( T e n n . 1 9 8 0 ) ,
( s t a t i n g t h a t t h e c o u r t h a s t h e d i s c r e t i o n t o     r e t a i n j u r i s d i c t i o n a n d c o n t r o l
o v e r j u v e n i l e s u n t i l t h e y r e a c h t h e a g e o f 2 1       y e a r s ) .

                                                                   2
for purposes of appeal since the cases involved similar factual

and legal issues.



          Mr. Edwards currently has another criminal action

pending against him in the United States District Court for the

Eastern District of Tennessee at Knoxville.    If Mr. Edwards is

convicted in District Court, his juvenile delinquency convictions

can be used to enhance his sentence under the Federal Sentencing

Guidelines.   The Federal Sentencing Guidelines allow courts to

enhance sentences for federal crimes by using juvenile

delinquency convictions if committed within five years of the

commission of the present federal offense.    Presumably, Mr.

Edwards filed his post-commitment petitions so that his juvenile

delinquency convictions could not be used to enhance his

potential sentence in Federal Court.



          The only issue raised, as previously noted, is whether

Mr. Edwards can obtain the remedies provided by the Juvenile

Post-Commitment Procedures Act, even though he is no longer a

juvenile nor “in custody.”   The operative provision of the

Juvenile Post-Commitment Procedures Act applicable in this case

is T.C.A. 37-1-302.   This Section explains when juveniles can

petition for post-commitment relief.   T.C.A. 37-1-302 states

that:



     A juvenile in the custody of the department of
     children’s services pursuant to a commitment by a
     juvenile court of this state may petition for post-
     commitment relief under this part at any time after the
     juvenile has exhausted the juvenile’s appellate
     remedies or time for an appeal to the circuit court
     pursuant to § 37-1-159, or the juvenile’s appeal in the
     nature of a writ of error from the judgment of the



                                3
          circuit court has passed and before the juvenile has
          been discharged from the custody of the department.



                    The Tennessee Legislature provided a definition of

“custody” to be used in the statutory part governing juvenile

courts and proceedings, T.C.A. 37-1-101 through T.C.A. 37-1-616.

The Juvenile Post-Conviction Procedures Act is included within

the part governing juvenile courts and proceedings.                                                          Therefore,

the Legislature’s definition of custody must be applied to the

Act unless the context otherwise requires.                                                T.C.A. 37-1-102(b).

T.C.A. 37-1-102(b)(8) defines “custody” as follows:



          Custody means the control of actual physical care of
          the child and includes the right and responsibility to
          provide for the physical, mental, moral and emotional
          well-being of the child. “Custody,” as herein defined,
          relates to those rights and responsibilities as
          exercised either by the parents or by a person or
          organization granted custody by a court of competent
          jurisdiction. “Custody” shall not be construed as the
          termination of parental rights set forth in § 37-1-147.
          “Custody” does not exist by virtue of mere physical
          possession of the child.



                    Mr. Edwards argues that the Juvenile Post-Commitment

Procedures Act is patterned after the forerunner of the present

Tennessee Post-Conviction Relief Act, for adults, found in what

was formerly T.C.A. 40-3801, et. seq.                                         The language of both

Statutes is similar.2                         In State v. McCraw, 5 5 1                        S . W . 2 d    6 9 2

( T e n n . 1 9 7 7 ) ,   t h e   T e n n e s s e e   S u p r e m e   C o u r t     d e c i d e d   t h e    m e a n i n g   o f

“ i n   c u s t o d y ”   u n d e r   t h e   r e p e a l e d   T e n n e s s e e     P o s t - C o n v i c t i o n    R e l i e f



          2
                    T.C.A. 40-3802 provides that:

          A prisoner in custody under sentence of a court of this state may
          petition for post-conviction relief under this chapter at any time
          after he has exhausted his appellate remedies or his time for
          appeal in the nature of a writ of error has passed and before the
          sentence has expired or has been fully satisfied.

                                                                4
A c t .       T h e     C o u r t         h e l d       t h a t     “ i n     c u s t o d y ”         m e a n t         a n y     p o s s i b i l i t y       o f       a

r e s t r a i n t       o n     l i b e r t y .             M r .     M c C r a w         h a d     a l r e a d y         s e r v e d       h i s     s e n t e n c e

a n d     f i l e d     h i s       p o s t - c o n v i c t i o n             r e l i e f         a c t i o n       a f t e r       h e     w a s     d e n i e d

t h e     o p p o r t u n i t y           t o     v o t e     i n     a     G e o r g i a         e l e c t i o n .             G e o r g i a       d e n i e d

M r .     M c C r a w       t h e     o p p o r t u n i t y           t o     v o t e       b e c a u s e         o f     h i s     p r i o r       f e l o n y

c o n v i c t i o n .           O u r       S u p r e m e         C o u r t     n o t e d         t h a t     M r .       M c C r a w       w a s     s t i l l     i n

c u s t o d y     s i n c e         h e     c o n t i n u e d         t o     s u f f e r         “ s u b s t a n t i a l           a n d     i m p o r t a n t

c o l l a t e r a l         c o n s e q u e n c e s           o f     h i s     c o n v i c t i o n           o v e r       a n d     a b o v e       h i s

s e n t e n c e       t o     i m p r i s o n m e n t ”             d u e     t o       h i s     i n a b i l i t y         t o     v o t e     i n

G e o r g i a .         M c C r a w ,           s u p r a .



                        B e c a u s e           t h e     l a n g u a g e       o f       t h e     t w o     S t a t u t e s         a r e     a l m o s t

i d e n t i c a l ,         Mr. Edwards argues that “in custody” for the Juvenile

Post-Commitment Procedures Act should be interpreted according to

McCraw.               Thus, since Mr. Edwards would face a continuing

collateral consequence of his imprisonment through a lengthened

sentence for his current federal crime due to the Federal

Sentencing Guidelines, Mr. Edwards would still be “in custody”

and be able to bring his post-commitment relief claim.                                                                                              This

argument is not completely without merit, but we note that the

two Statutes are not as similar as Mr. Edwards would have us

believe.                The Tennessee Post-Conviction Relief Act for adults

contained no definition of “custody.”                                                                 As a result, the

Legislature left the t a s k                                        o f     d e f i n i n g         t h e     t e r m       t o     t h e     c o u r t s ,

w h i c h     r e s u l t e d         i n       t h e     d e f i n i t i o n           r e a c h e d       i n     M c C r a w .           H o w e v e r ,       i n

t h e     T e n n e s s e e         J u v e n i l e         P o s t - C o m m i t m e n t             A c t       t h e     L e g i s l a t u r e         d i d

n o t     l e a v e     t o     t h e       c o u r t s       t h e       d e f i n i t i o n         o f     c u s t o d y ,         b u t     r a t h e r




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enacted a definition.                         This is a critical difference between the

two Statutes.



                    Whenever the Tennessee General Assembly clearly speaks

directly to an issue, we need proceed no further because courts

must give effect to unambiguous Statutes.                                                   Spencer v. Towson

Moving and Storage, Inc., 922 S.W.2d 508 (Tenn.1996), citing

Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn.App.1994).                                                                 If a

Statute’s language is devoid of ambiguity, courts must not depart

from the Statute’s words.                               Davis v. Reagan, 951 S.W.2d 766

(Tenn.1997).                Further, “courts are restricted to the natural and

ordinary meaning of the language used by the Legislature within

the four corners of the statute, unless an ambiguity requires

resort elsewhere to ascertain legislative intent.”                                                              Austin v.

Memphis Publishing Co., 655 S.W.2d 146 (Tenn.1983).                                                               Therefore,

we must give effect to the definition of “custody” provided by

the Legislature in the Juvenile Post-Commitment Procedures Act

unless the definition is ambiguous.



                    A f t e r   a n a l y z i n g     T . C . A .       3 7 - 1 - 1 0 2 ( b ) ( 8 )     a n d   3 7 - 1 - 3 0 2 ,   w e

f i n d   t h a t   t h e s e   S t a t u t e s     a r e   u n a m b i g u o u s .         T h e     G e n e r a l   A s s e m b l y

d e f i n e d   “ c u s t o d y ”   as “the control of actual physical care of the

child and includes the right and responsibility to provide for

the physical, mental, moral and emotional well-being of the

child.”             T.C.A. 37-1-102(b)(8).                              (Emphasis supplied.)                          Thus, a

person is no longer in custody of the Department of Youth

Development when the Department no longer has “control of actual

physical care” of the juvenile.                                         The Legislature unambiguously

limited custody to the time when the organization which is

granted custody has control of the juvenile.                                                        Once this actual

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physical control ends, the person is no longer in custody, even

if a continuing collateral consequence of imprisonment exists

after actual physical custody ends.                 Therefore, because the

Legislature unambiguously defined custody for use in the Juvenile

Post-Commitment Procedures Act, we must apply this definition to

the case at hand.          McCraw does not apply to this Act as it did to

the Adult Post-Conviction Act since the Legislature specifically

defined custody.



                 Under T.C.A. 37-1-102(b)(8), Mr. Edwards was no longer

in custody when he was released from the Department of Youth

Development upon reaching his 21st birthday.                          Mr. Edwards filed

his suits for post-commitment relief well after his 21st birthday

when he was no longer in custody.               Since Mr. Edwards was 22, he

also was not a juvenile when he filed his petitions.                                  It results

that Mr. Edwards, not being a juvenile nor in custody, is not

eligible to obtain the post-commitment relief available under the

Juvenile Post-Commitment Procedures Act.



                 For the foregoing reasons, we affirm the Knox County

Circuit Court’s denial of Mr. Edwards’ petitions for post-

commitment relief and remand the case for such further

proceedings, if any, as may be necessary and collection of costs

below.          Costs of appeal are adjudged against Mr. Edwards and his

surety.



                                      _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                      H o u s t o n M . G o d d a r d , P . J .


C O N C U R :



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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
C h a r l e s D . S u s a n o , J r . , J .



_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
W i l l i a m H . I n m a n , S r . J .




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