           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                       JANUARY 1999 SESSION
                                                        May 4, 1999

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
WAYNE DAVIDSON,                  *    No. 03-C-01-9708-CR-00373

      Appellant,                 *    MORGAN COUNTY

VS.                              *    Hon. Russell Simmons, Jr., Judge

CHARLIE JONES,                   *    (Habeas Corpus)

      Appellee.                  *




For Appellant                               For Appellee

Charles B. Hill, II                   John Knox Walkup
P.O. Box 852                                Attorney General and
Reporter
Kingston, TN 37763                    450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      Elizabeth B. Marney
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Charles E. Hawk
                                      District Attorney General
                                      P.O. Box 703
                                      Kingston, TN 37763




OPIINION FILED: _________________________




AFFIRMED




NORMA MCGEE OGLE, JUDGE
                                        OPINION

              The petitioner, Wayne Davidson, appeals the Morgan County Circuit

Court’s summary dismissal of his petition for a writ of habeas corpus on August 20,

1997. In this appeal as of right the petitioner raises the following issue: Whether the

trial court erred by dismissing his petition for a writ of habeas corpus without a

hearing. After a review of the record, we affirm the judgment of the trial court.



              The lengthy history of this case was fully summarized in previous

appeals to this court. See Davidson v. State, No. 03C01-9512-CC-00405, 1997 WL

167215, at *1 (Tenn. Crim. App. at Knoxville, April 10, 1997); Davidson v. Mills, No.

03C01-9110-CR-00338, 1992 WL 141807, at *1 (Tenn. Crim. App. at Knoxville),

perm. to appeal denied, (Tenn. 1992); Davidson v. State, No. 20, 1989 WL 9628, at

*1 (Tenn. Crim. App. at Knoxville, January 20, 1989). Briefly, on May 2, 1985, the

petitioner was convicted in the Meigs County Criminal Court of 2nd Degree Burglary.

The jury further found that the petitioner was an habitual criminal, a status

mandating an enhanced sentence of life imprisonment. This court affirmed the

conviction and sentence on direct appeal. See State v. Davidson, No. 13, 1987 WL

14282 (Tenn. Crim. App. at Knoxville, July 21, 1987). The petitioner subsequently

filed two petitions for post-conviction relief in the Meigs County Criminal Court and

two petitions for habeas corpus relief, one in the Morgan County Criminal Court and

one in the Roane County Criminal Court. This court granted relief, in part, pursuant

to the petitioner’s first petition for post-conviction relief. Davidson, No. 20, 1989 WL

9628, at *3. The petitions were otherwise denied. Davidson, No. 03C01-9512-CC-

00405, 1997 WL 167215; Davidson, No. 03C01-9110-CR-00338, 1992 WL 141807.



              On October 31, 1996, the petitioner filed another petition for a writ of

habeas corpus in the Morgan County Circuit Court. The petitioner argued that his

judgment was void in that it did not reflect the trial court’s approval of the jury’s


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verdict finding him guilty of 2nd Degree Burglary. The petitioner also alleged that the

transcript of proceedings in the trial court does not indicate that the trial court orally

announced the petitioner’s sentence.



                Notwithstanding the style of the petition, proceedings were conducted

by the Morgan County Criminal Court, the Honorable E. Eugene Eblen, Judge,

presiding. The trial court issued an order dismissing the petition on November 4,

1996. The trial court ruled that the issues alleged in the petition were previously

litigated and the judgment is facially valid.



                On January 31, 1997, the petitioner filed a motion to amend his

original petition.1 The petitioner alleged that he was not present during “any sentencing

portion of his trial” and argued that the Meigs County Criminal Court did not have personal

jurisdiction to proceed with his trial in his absence. Additionally, on February 7, 1997, the

petitioner filed a motion to “[v]oid” the Morgan County Criminal Court’s order of dismissal

or, in the alternative, grant the petitioner a delayed appeal. In this motion, the petitioner

argued that, because he filed his petition for a writ of habeas corpus with the Morgan County

Circuit Court, the criminal court did not have jurisdiction to rule on his petition. He also

contended that Judge Eblen had previously recused himself from the petitioner’s case.



                On March 10, 1997, the Morgan County Criminal Court set aside its order of

dismissal and transferred the case to the Morgan County Circuit Court. On August 20, 1997,

upon the State’s motion, the Morgan County Circuit Court dismissed the petition without

conducting a hearing.



                On appeal, the petitioner contends that the trial court erred by dismissing his

petition for a writ of habeas corpus without a hearing. The petitioner relies solely upon his

1
 On August 13, 1997, the petitioner filed another motion to amend his original petition. However, the
August 13 motion is identical to the January 31 motion.

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argument that the convicting court did not have personal jurisdiction in his case, because he

was not present when the sentence was imposed. In support of his argument, the petitioner

cites Tenn. R. Crim. P. 43. Rule 43(a) provides that “the defendant shall be present …at

every stage of the trial including … the return of the verdict, and at the imposition of

sentence.” Furthermore, the petitioner alleges that his involuntary absence during the

imposition of his sentence violated “a fundamental constitutional right.” Therefore,

according to the petitioner, he has not waived this issue nor does the principle of res judicata

bar the suit.



                The remedy of the writ of habeas corpus is limited to relief from void and not

merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993); Passarella

v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994); Donald v. State, No. 01C01-9710-

CR-00481, 1998 WL 468646, at *1 (Tenn. Crim. App. at Nashville, August 12, 1998), perm.

to appeal denied, (Tenn. 1999). In other words, it must appear upon the face of the judgment

or the record of the proceedings upon which the judgment is rendered that a court was

without jurisdiction or authority to convict or sentence a defendant, or that a defendant=s

sentence of imprisonment has expired. Archer, 851 S.W.2d at 164; Ritchie v. State,

No. 03C01-9601-CC-00029, 1998 WL 855517, at *2 (Tenn. Crim. App. at Knoxville,

December 10, 1998). Additionally, if a claim would necessarily involve investigation

beyond the face of the judgment or the record of the proceedings, the claim will not

be cognizable in habeas corpus proceedings. See, e.g., Martin v. State, No. 02C01-

9804-CC-00101, 1998 WL 467098, at *1 (Tenn. Crim. App. at Jackson, August 12,

1998). The petitioner has the burden of establishing either a void judgment or an

illegal confinement. Passarella, 891 S.W.2d at 627.



                The Habeas Corpus Act requires a court to review the petition and

dismiss it unless it alleges a cognizable ground for relief. Tenn. Code Ann. §§ 29-

21-101 to –109 (1980). In other words, a petition for a writ of habeas corpus may be


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summarily dismissed by the trial court without appointment of counsel, without an

evidentiary hearing, and without the opportunity to amend the petition, if the face of

the petition does not present a cognizable claim. Mitchell v. Carlton, No. 03C01-

9704-CR-00125, 1998 WL 8505, at *2 (Tenn. Crim. App. at Knoxville, January 12,

1998). See also State ex rel. Byrd v. Bomar, 381 S.W.2d 280, 283 (Tenn. 1964).



              The authenticated trial transcript submitted in this case shows that the

petitioner was present when the jury found that he was an habitual criminal. The

transcript states:

              JURY FOREMAN: Yes, sir. “We the jury find the
              Defendant, Wayne K. Davidson, is an Habitual Criminal.”
              THE COURT: If that is the verdict of each and everyone
              of you, please raise your right hands.
              So say them all.
              All right, Mr. Davidson, the jury has determined that you
              are an Habitual Criminal. Therefore, you will have to be
              taken into custody at this time.


Thus, under the habitual criminal statutes, the petitioner was present at the

imposition of his sentence. See Tenn. Code. Ann. § 39-1-801 to –807 (1982).



              This conclusion rests upon the premise that, under the habitual

criminal statutes, the jury rather than the judge imposes the sentence of life

imprisonment. Thus, in Moultrie v. State, 584 S.W.2d 217, 219 (Tenn. Crim. App.

1978), this court observed that the function of the jury under the habitual criminal

statutes is to determine if “a defendant’s record of recidivism warrants enhanced

punishment as prescribed. The statutes themselves fix the enhanced punishment at

life in the penitentiary.” The only function of the judge thereafter is to “record the

verdict of the jury and enter judgment accordingly.” Tenn. Code Ann. § 39-1-805.

See also Tenn. Code Ann. § 40-35-203 (1982) (the trial court need only conduct a

sentencing hearing on the underlying felony pursuant to the Criminal Sentencing

Reform Act of 1982 if the defendant is acquitted of being an habitual offender).



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              Therefore, it appears from the face of the record that the petitioner’s

claim is without merit. Moreover, the petitioner’s contention that further investigation

would reveal that the transcript is erroneous and that he was not, in fact, present

during sentencing proceedings renders the judgment voidable and not void.



              For the foregoing reasons, we affirm the judgment of the trial court.



                                                 _____________________________
                                                 Norma McGee Ogle, Judge




CONCUR:



_____________________________
Gary R. Wade, Presiding Judge



_____________________________
James Curwood W itt, Jr., Judge




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