IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1998 September 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
JONATHAN ELLIS, ) C.C.A. NO. 03C01-9711-CR-00493
)
Appe llant, )
)
) JOHNSON COUNTY
VS. )
) HON. LYNN W. BROWN
HOWARD CARLTON, ) JUDGE
WARDEN, STATE OF )
TENNESSEE )
)
Appellee. ) (Habeas Corpus)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF JOHNSON COUN TY
FOR THE APPELLANT: FOR THE APPELLEE:
JONATHAN ELLIS, PRO SE JOHN KNOX WALKUP
P.O. Box 5000 Attorney General and Reporter
Mountain City, TN 37683-5000
ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Jonathan Ellis, appeals as of right from th e dism issal of h is
petition for habeas corpus relief. The Defendant is an inmate in the custody of
the Depa rtment o f Correc tion. Acco rding to his petition, on May 10 , 1994, he
pleaded guilty to and was convicted of thirteen counts of aggravated rape and
was sentenced to concurrent terms of twenty-five years for each conviction. On
July 25, 1997, the Defendant filed a petition for a writ of habeas corpus alleging
that the Criminal Court of Sullivan County, in which he pleaded guilty, did not
have jurisdiction to convict h im of these offenses b ecause the crimes were
actua lly comm itted in Hawkins C ounty rather than Sullivan C ounty. The trial cou rt
sum marily dismissed the petition, concluding that the allegation of lack of venue
did not provide the Defendant grounds for habeas corpus relief. We affirm the
judgm ent of the tria l court.
The record re flects that the Defen dant wa s charg ed in eac h coun t of the
presentment with comm itting the crime in Sullivan County, Tennessee. In the
written plea of gu ilty signed b y the De fendan t, the Defenda nt state d “that h e is
guilty of the charge(s) because the facts which he knows to exist equal the
eleme nts of the charge(s) as those elements have been explained to him by the
court. De fendan t therefore states tha t there is a fa ctual bas is for his plea .”
Habeas corpu s relief is available only when a convicting court is without
jurisdiction or authority to sentence a defendant or w hen that defen dant’s term
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of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164
(Tenn. 19 93).
In this appeal, the Defendant argues that the trial judge erred by dismissing
his petition for habeas corpus relief without conducting an evidentiary hearing
concerning his allegation that the convicting court was without jurisdiction due to
improper venue. He argues that if he can prove that the crimes took place
outside of Sullivan County, then the Criminal Court of Sullivan County had no
jurisdiction o ver these offenses and the refore his c onvictions are void.
Because Article 1, Section 9 of the Tennessee Constitution gives a person
accused of a crime the righ t to have a jury trial in the county in which the crime
was committed, venue is considered a jurisdictional fact in a criminal prosecution.
Harvey v. State, 376 S.W .2d 497 , 498 (T enn. 19 64); Norris v. S tate, 155 S.W .
165 (Tenn. 191 3). It has thus been stated that the juris diction of the tria l court is
limited to the c rimes which occu r within the territorial boundaries of the co unty in
which it sits. State v. Hill, 847 S.W .2d 544 , 545 (T enn. C rim. App . 1992); see
also Tenn. R. Crim. P. 18.
Although venue is a jurisdictiona l matter, Tenn essee cou rts have
cons istently held that venue can be waived in certain circumstances. See State
v. Nicho ls, 877 S.W.2d 722, 727-29 (Tenn. 1994) (motion for change of venue
constitutes waiver of claim that court lacked jurisdiction); State v. Turner, 919
S.W.2d 346, 358 (Tenn. Crim. App. 1995) (rejecting the defendant’s claim that
the trial court was without jurisdiction to accept his guilty plea and holding that he
waived the issue by ra ising the iss ue for the first time on appea l); State v. S mith,
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906 S.W.2d 6, 9 (Tenn. C rim. A pp. 19 95) (w aiver b y cons enting to trial co urt’s
ruling that prosecution would be more a ppropria te in anoth er coun ty); State v.
Gilbert, 751 S.W.2d 454, 462 (Tenn. Crim. App. 1988) (waiver by failing to stand
on motion for judgment of acquittal and by failing to make references to the
record). Obviou sly, if venue c ould no t be waive d, a defen dant’s req uest for a
change of venue could never be granted.
In a criminal trial, the burden is on the State to prove venue b y a
preponderance of the evide nce. Harvey v . State, 376 S.W.2d 497, 4 98 (Tenn.
1964). Slight evidence is enough to carry the prosecution’s burden of
preponderance if it is uncontra dicted. State v. Bloodsaw, 746 S.W.2d 722, 724
(Tenn. Crim. App . 1987). Althoug h a guilty plea will ordinarily obviate the
necessity of any actual evidence being presented, the trial judge must
nevertheless be satisfied that there is a factual basis for the plea. Tenn. R. Crim.
P. 11(f). Upon a plea of guilty, a factual basis may be and usually is shown
simp ly by the prosecutor’s statement of the evidenc e. State v. Lord, 894 S.W.2d
312, 316 (T enn. Crim. A pp. 1994).
When a defenda nt pleads guilty, he waives the requirement that the State
be required to prove each e lemen t of the offen se beyo nd a rea sonab le doub t.
In pleading guilty, a defendant also waives the requirement that the State prove
venue by a preponderance of the evidence.
The Defendant in the case at bar was charged with committing thirteen
counts of aggravated rape in Sullivan County, Te nnessee . In the Criminal C ourt
of Sullivan County, Tennessee, he pleaded guilty to these charges. Once a
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criminal defen dant h as so lemn ly admitted in open court that he is in fact guilty of
the offense with wh ich he is charge d, he may n ot thereafter raise independent
claims relating to the deprivation of constitutional rights occ urring prior to the
entry of the guilty plea . State v. Hodges, 815 S.W .2d 151 , 153 (T enn. 19 91). W e
believe that a criminal defendant waives his right to challenge venue upon
pleading guilty. Recor v. State, 489 S.W .2d 64, 69 (T enn. Crim. A pp. 1972);
We aver v. Sta te, 472 S.W .2d 898, 902 (Tenn. Crim . App. 1971 ).
Even though venue is jurisdictional in a criminal case, it may be waived.
W e conclud e that a gu ilty plea wa ives venu e. Therefore, even if one or more of
the Defenda nt’s crimes actually took place outside of Sullivan County, the
Sullivan Coun ty Crim inal Co urt had jurisdic tion to c onvict th e Def enda nt upo n his
pleas of guilty. The judgment of the trial court denying the Defendant habeas
corpus relief is accordingly affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
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GARY R. WADE, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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