        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 11, 2006

              THOMAS H. PLEASANT v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Lake County
                        No. 05-CR-8752     R. Lee Moore, Jr., Judge



                    No. W2005-02885-CCA-R3-HC - Filed April 20, 2006


The petitioner, Thomas H. Pleasant, pled guilty in the Davidson County Criminal Court to second
degree murder, attempted first degree murder, and aggravated robbery, and he received a total
effective sentence of eighteen years in the Tennessee Department of Correction. Subsequently, the
petitioner filed a petition for a writ of habeas corpus, alleging that the 1989 Sentencing Act is
unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The habeas
corpus court summarily denied the petition, and the petitioner appeals. Upon review of the record
and the parties’ briefs, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Thomas H. Pleasant, Tiptonville, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; and C.
Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                    I. Factual Background

        On March 16, 1998, the petitioner was indicted by a Davidson County Grand Jury for first
degree murder, attempted first degree murder, and aggravated robbery. Thereafter, on October 29,
1998, the petitioner pled guilty to second degree murder, attempted first degree murder, and
aggravated robbery. He received an eighteen-year sentence for each of the murder convictions and
a twelve-year sentence for the aggravated robbery conviction. The petitioner was required to serve
one hundred percent of his second degree murder sentence in confinement, with all of the sentences
to be served concurrently for a total effective sentence of eighteen years.
       Subsequently, the petitioner filed in the Lake County Circuit Court a petition for a writ of
habeas corpus. Therein, the petitioner argued that the 1989 Sentencing Act was unconstitutional
because it allowed the trial court, not the jury, to find the existence of enhancement factors. The
habeas corpus court denied the petition without appointing counsel or conducting an evidentiary
hearing, finding that the petitioner’s sentences were not void. The petitioner now appeals that
dismissal.

                                             II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial court’s
findings de novo without a presumption of correctness. Id. Moreover, it is the petitioner’s burden
to demonstrate, by a preponderance of the evidence, “that the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

         Article I, § 15 of the Tennessee Constitution guarantees an accused the right to seek habeas
corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch relief is
available only when it appears from the face of the judgment or the record of the proceedings that
a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of
imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann.
§ 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the judgment
is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the
judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant’s sentence has expired.’ We have recognized that a sentence imposed in
direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d
910, 911 (Tenn. 2000) (citations omitted).

       On appeal, the petitioner argues that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), renders Tennessee’s 1989 Sentencing Act unconstitutional, thereby voiding his sentences.
In Blakely, the United States Supreme Court explained that the “‘statutory maximum’ for
Apprendi[v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)] purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. Recently in State v. Gomez,163 S.W.3d
632, 661 (Tenn. 2005), a majority of our supreme court found that, unlike the sentencing scheme
discussed in Blakely, “Tennessee’s sentencing structure does not violate the Sixth Amendment.”
Accordingly, we conclude that the 1989 Sentencing Act is not unconstitutional, and the petitioner’s
sentences are not void. Furthermore, this court has previously held that Blakely does not establish
a new watershed rule, and that Blakely does not apply retroactively to cases on collateral appeal. See
Donald Branch v. State, No. W2003-03042-CCA-R3-PC, 2004 WL 2996894, at *10 (Tenn. Crim.
App. at Jackson, Dec. 21, 2004), perm. to appeal denied, (Tenn. 2005); Carl Johnson v. State, No.
W2003-02760-CCA-R3-PC, 2005 WL 181699, at *4 (Tenn. Crim. App. at Jackson, Jan. 25, 2005),
perm. to appeal denied, (Tenn. 2005). As such, we conclude that the petitioner is not entitled to
habeas corpus relief.


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                                III. Conclusion

Finding no error, we affirm the judgment of the habeas corpus court.


                                             ___________________________________
                                             NORMA McGEE OGLE, JUDGE




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