         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 9, 2005

         MICHAEL KEITH KENNEDY v. KEVIN MYERS, WARDEN

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 13403     Robert L. Jones, Judge



                     No. M2004-01722-CCA-R3-HC - Filed July 26, 2005


The petitioner, Michael Keith Kennedy, entered pleas of nolo contendere in Chester County and in
Henderson County to aggravated burglary, possession of marijuana, and numerous counts of burglary
of an automobile, theft, and vandalism. The petitioner received a total effective sentence of fifteen
years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed
a petition for a writ of habeas corpus. The habeas corpus court summarily denied the petition, and
the petitioner appeals the denial. Upon our 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 JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Michael Keith Kennedy, Clifton, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; and T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       On December 4, 2001, the petitioner entered a plea of nolo contendere to one count of
aggravated burglary, a Class C felony, and one count of theft of property valued less than $500, a
Class A misdemeanor. The petitioner was sentenced as a persistent offender to fifteen years for the
aggravated burglary conviction and eleven months and twenty-nine days for the theft conviction,
with the sentences to be served concurrently. These charges originated in Chester County.

      Also on December 4, 2001, the appellant pled nolo contendere to the following Henderson
County offenses: three counts of theft of property valued between $1,000 and $10,000, a Class D
felony; five counts of burglary of an automobile, a Class E felony; two counts of theft of property
valued between $500 and $1,000, a Class E felony; vandalism of property valued between $500 and
$1,000, a Class E felony; two counts of theft of property valued less than $500, a Class A
misdemeanor; two counts of vandalism of property valued less than $500, a Class A misdemeanor;
and one count of possession of a Schedule IV controlled substance, a Class A misdemeanor. The
appellant received a sentence of twelve years for each of his Class D felony convictions, a sentence
of six years for each of his Class E felony convictions, and a sentence of eleven months and twenty-
nine days for each of his misdemeanor convictions. Additionally, the trial court ordered the
appellant to pay restitution in connection with his burglary of an automobile convictions. The trial
court ordered that the Henderson County sentences were to be served concurrently with each other
and with the Chester County sentences for a total effective sentence of fifteen years.

        The petitioner reserved a certified question of law in connection with his plea. On appeal,
this court concluded that we did not have jurisdiction as to three of the Henderson County offenses
because the question was not dispositive as to those offenses. See State v. Michael Kennedy, No.
W2001-03107-CCA-R3-CD, 2003 WL 402798, at *1 (Tenn. Crim. App. at Jackson, Feb. 21, 2003).
This court affirmed the remainder of the appellant’s convictions. Id.

        Thereafter, the petitioner pursued both post-conviction and habeas corpus relief. This court
determined that the petitioner’s notice of appeal was not timely filed in connection with his habeas
corpus case, and we dismissed his appeal. See Michael K. Kennedy v. State, No. W2004-00178-
CCA-R3-HC, 2005 WL 331367, at *1 (Tenn. Crim. App. at Jackson, Feb. 11, 2005). In his post-
conviction case, this court remanded certain issues for an evidentiary hearing and determined that
the petitioner was not entitled to relief on the remainder of his issues. See Michael Keith Kennedy
v. State, No. W2003-02824-CCA-R3-PC, 2005 WL 645164 (Tenn. Crim. App. at Jackson, Mar. 16,
2005).

       Subsequently, the petitioner filed in the Wayne County Circuit Court the instant petition for
habeas corpus relief from his convictions for burglary of an automobile, alleging that the trial court
was without the authority to impose restitution in conjunction with his sentence of confinement.
Additionally, the petitioner complains that his convictions and sentences for burglary of an
automobile were void because the indictments failed to allege that the victims suffered financial loss.
The habeas corpus court summarily dismissed the petition for habeas corpus relief, and the petitioner
now appeals.

                                             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). Further, a trial court may
properly summarily dismiss a petition for habeas corpus relief for failure to state a cognizable claim.


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Passerella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

         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).

         The petitioner cites State v. Davis, 940 S.W.2d 558, 562 (Tenn. 1997), to support his
contention that the trial court was not authorized to impose restitution as part of a sentence involving
confinement. In Davis, our supreme court concluded that at the time defendant Davis was sentenced,
the trial court was without the authority to impose a sentence including both restitution and
confinement. Id. However, the Davis court noted that, effective July 1, 1996, after the sentencing
of Davis, our legislature amended Tennessee Code Annotated section 40-35-104(c)(2) to permit
restitution in conjunction with a sentence involving confinement. Id. at 561 n.6. The petitioner
insists that, regardless of the 1996 amendment to Tennessee Code Annotated section 40-35-
104(c)(2), the trial court was nevertheless without authority to impose restitution along with his
sentence of confinement. Tennessee Code Annotated section 40-35-104 (1996) provides:

               (C) The following sentencing alternatives in any appropriate
               combination are authorized for defendants otherwise eligible under
               this chapter:

               ....


               (2) Payment of restitution to the victim or victims either alone or in
               addition to any other sentence authorized by this subsection;

               ....

               (8) A sentence of continuous confinement in the department if the
               conviction is for a felony and the sentence is at least one (1) year. . .
               .

        Because the petitioner’s offenses occurred in August 2000, the 1996 amendment authorizing
the sentences imposed by the trial court, namely restitution combined with confinement, had been


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in effect for some time. Accordingly, the petitioner is not entitled to relief on this issue. See Edwin
Matthew Bryant v. Flora J. Holland, Warden, No. M2003-02838-CCA-R3-HC, 2005 WL 839294,
at *2 (Tenn. Crim. App. at Nashville, Apr. 7, 2005); State v. Delaney E. Marcum, No.
M2001-02257-CCA-R3-CD, 2002 WL 1585641, at *2 (Tenn. Crim. App. at Nashville, July 18,
2002).

         The petitioner also complains that his convictions and sentences for burglary of an
automobile were void because the indictments failed to allege that the victims suffered financial loss.
Generally, the sufficiency of an indictment is not a proper subject for habeas corpus review. See
Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971). “However, if an indictment fails
to state an offense, the subsequent conviction on the defective indictment is void because no crime
is before the court and because the court lacks jurisdiction.” Arzolia Charles Goines v. Warden Glen
Turner, No. W2003-02281-CCA-R3-HC, 2004 WL 2113042, at *1 (Tenn. Crim. App. at Jackson,
Sept. 22, 2004). Accordingly, if the indictment does not properly charge an offense, thereby
depriving the convicting court of jurisdiction, “that indictment may be challenged in a habeas corpus
proceeding.” Id.

       The statute defining burglary of an automobile does not provide that the amount of the
property taken is an element of that offense. See Tenn. Code Ann. § 39-14-402(a)(4) (1997).
Accordingly, it was not necessary for the amount of property taken to be alleged in the indictments
charging the appellant with burglary of an automobile. Thus, the indictments in this case were not
void. Therefore, the petitioner is not entitled to relief on this issue.

        Finally, the petitioner has raised additional issues relating to the imposition of restitution.
However, our review reveals that none of the remaining issues render his convictions or sentences
void. Notably, the remainder of the issues raised by the petitioner are properly the subject of a direct
appeal. See Tenn. Code Ann. § 40-30-106(g) (2003) (“A ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been presented.”). Accordingly, the
petitioner is not entitled to relief.

                                           III. Conclusion

       Based upon the foregoing, we affirm the judgment of the habeas corpus court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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