         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 30, 2007

 JACQUES B. BENNETT v. VIRGINIA LEWIS, WARDEN and STATE OF
                         TENNESSEE

                       Appeal from the Circuit Court for Bledsoe County
                         No. 61-2005    Thomas W. Graham, Judge



                    No. E2006-01592-CCA-R3-HC - Filed February 8, 2007



The petitioner, Jacques B. Bennett, pled guilty to first degree murder in 1992 and was sentenced to
life in prison. He petitioned for a writ of habeas corpus, arguing that the judgment against him was
void because he was not present and not represented by counsel at his sentencing hearing and
because the trial court did not follow statutory mandates in sentencing him. The trial court dismissed
his petition without a hearing. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Jacques B. Bennett, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and James Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The documents attached to the petition reflect that the petitioner pled guilty to first degree
murder in Hamilton County on November 9, 1992. The “order of conviction” entered on that date
states that the sentencing hearing was set for December 1, 1992. According to the petitioner, he
never attended a sentencing hearing on that date or any date thereafter. He also claims that he never
waived his right to be present at his sentencing hearing. The petitioner’s first degree murder
judgment has November 9, 1992, written as the date of entry of judgment. Below the trial judge’s
signature, the date January 5, 1993, is written as the “date signed.” The judgment was signed by a
prosecutor but not by a defense attorney. According to the petitioner, he was represented in trial
court by two attorneys. The petitioner alleges that on December 13, 1992, he filed a motion
requesting new counsel and to withdraw his guilty plea. While the petitioner says that to the best
of his knowledge, no order has ever been filed on this motion, in a previous appeal this court stated
that the trial court denied the motion before entering judgment. Jacques B. Bennett v. State, C.C.A.
03C01-9809-CR-00338, Hamilton County, slip op. at 2 (Tenn. Crim. App. Oct. 5, 1999). The cover
sheet of an investigation report dated January 11, 1993, was attached to the petition and lists the
petitioner’s hearing date as January 21, 1993. The petitioner was unsuccessful in seeking post-
conviction relief on grounds that his plea was involuntary and unknowing and that he received the
ineffective assistance of counsel. Jacques B. Bennett v. State, C.C.A. No. 03C01-9512-CR-00391,
Hamilton County (Tenn. Crim. App. Aug. 28, 1996). This court also affirmed the trial court’s denial
of a late-filed “Motion to Vacate/Set Aside Judgment/Plea: and, to Declare Said Judgment/Plea
Void.” Jacques B. Bennett, C.C.A. 03C01-9809-CR-00338, Hamilton County.

         The petitioner contends that he is entitled to habeas corpus relief because neither he nor his
counsel were present at the time he was sentenced. He contends that several due process violations
are implicated that render his judgment void. He also contends that his sentencing violated statutory
provisions of the 1989 Sentencing Act, including the mandated time period for conducting a
sentencing hearing, a defendant’s statutory right to be present at sentencing hearing, and the
utilization of a presentence report during sentencing. The state disputes the petitioner’s claim that
his sentencing took place on January 5, 1993, and argues that the petitioner’s judgment would not
be void even if his claims were supported by the record. The trial court dismissed the petition
without a hearing, stating that the petitioner’s allegations, if true, would render the judgment
voidable, not void, and thus did not present a cognizable claim for habeas corpus relief.

         The determination of whether habeas corpus relief should be granted is a question of law
which we review de novo on appeal. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). Habeas
corpus relief will be granted when the petitioner can show that his judgment is void, not merely
voidable. Taylor v. State, 995 S.W.3d 78, 83 (Tenn. 1999). To this end, a writ of habeas corpus is
granted only “when it appears upon the face of the judgment or the record of the proceedings upon
which the judgment is rendered that a court lacked jurisdiction or authority to sentence a defendant
or that the sentence has expired.” Stephensen v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (citing
Archer v. State, 851 S.W.3d 157, 164 (Tenn. 1993)). The burden is on the petitioner to establish that
the judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000); State ex rel. Kuntz v.
Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). If the petitioner carries this burden,
he is entitled to immediate release. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994). However, the trial court may dismiss a petition for writ of habeas corpus without an
evidentiary hearing and without appointing a lawyer when the petition does not state a cognizable
claim for relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex. rel. Edmondson v.
Henderson, 220 Tenn. 605, 609, 421 S.W.2d 635, 636 (1967); see also T.C.A. § 29-21-109.

        The petitioner is correct in pointing out that a defendant has the right to be present at his
sentencing hearing. See State v. Teague, 897 S.W.2d 248, 256 (Tenn. 1995). A defendant also has
a right to be represented by counsel at his sentencing hearing. See Tenn. R. Crim. P. 44(a).
However, the petitioner’s claims, if true, would render the judgment voidable, not void. These are
claims that would have been proper to raise in a post-conviction petition, rather than in a habeas


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corpus petition. See, e.g., Osepczuk v. Bell, No. M2006-00131-CCA-R3-HC, Davidson County,
slip. op. at 3 (Tenn. Crim. App. Jan. 8, 2007) (stating that the petitioner’s claim that he was denied
the opportunity to speak on his behalf prior to sentencing “is not a recognized claim for habeas
corpus relief”). Likewise, whether the trial court followed the proper statutory procedure in
conducting the sentencing hearing, including whether it utilized a presentence report, is not an issue
that would render the judgment void. The trial court had the jurisdiction and authority to sentence
the petitioner to life for his first degree murder conviction. The petitioner’s claims do not entitle him
to habeas corpus relief, and the trial court did not err in dismissing his petition.

       Based on the forgoing and the record as a whole, we affirm the judgment of the trial court
dismissing the petition for writ of habeas corpus.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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