# FILED September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 JONATHAN ELLI S, ) C.C.A. NO. 03C01-9711- CR-00493 ) Appe llant, ) ) ) JOHNSON COUNTY VS. ) ) HON.LYNN W. B ROWN HOWARD CARLTON, ) JUDGE WARDEN, STAT E OF ) TENNESSEE ) ) Appellee. ) (Habeas Corpus)

ON APPEA L 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 Generaland Reporter Mountain City , TN 37683-5000 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Jonat han Ellis , appeals as of right from th e dism issal of h is petiti on for habeascorpus relief. The Defendant is an i nmate in the custody of the Depa rtment o f Correc tion. Acco rding to his petition, on May 10 , 1 99 4, he pleaded gu ilty

to an d was convicted of thir teen counts of

aggravated r

ape and was sentence d toconc urrentter ms of twe nty-five years

for each conv ict ion . On July 25, 1997, t he Defendant fi led a peti tion for a writ of

habeas corpus all eging thatthe CriminalCourt of Sul liv an County, i n which he pleaded gui lty, did not have jurisdiction to convict h im of the se offenses b ecause the crimes were actua lly comm itted in Hawkins C ounty ra ther than Sullivan C ounty. The trial cou rt sum marily dismissed thepetiti on, concludi ng that the allegati on of lack of venue did not provi de the Defendant gr ounds for habeas corpus relief . We aff irm 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 th e presentmentwith comm itting the crime in Sulliva n County, Tennessee. In the written plea of gu ilty signed b y the De fendan t, the Def enda nt state d “that h e is guilty of the charg e(s) be cause t he facts whi ch he knows to exi st equal t he eleme nts of the charge(s) as those elements hav e been explain ed to him by th e court. De fendan t therefore states tha t there is a fa ctual bas is for his plea .”
Habeas corpu s relief is availa bl e only when a convi cting cour t is wi thout jurisdi ction or authority t o sentence a d efendant or w hen that defen dant’s term-3-

of imprisonment or

restrai nt has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 19 93).
In this appeal , the Defendant argues that the t rial j udge erred by dismissi ng his petition for habeas corpus re lie f without conducting an ev identiar y hearing concerning his allegat ion that t he convicti ng court was wi thout jurisdict ion due to impropervenue. He argues t hat if he can prove that the crimestook plac e outside of Sul livan Count y, then t he Criminal Court of Sullivan County had no jurisdiction o ver these offenses and the refore his c onvictions are void.
Because Articl e 1, Section 9 of the Tennessee Constitut ion gives a person accused of a crime the righ t to have a jury trialin the count y in which t he cri me was committed, venu e is consider ed a jurisdict ional fact in a cri minal prosecut ion. Harveyv. State , 376 S.W .2d 497 , 498 (T enn. 19 64); Norris v. S tate , 155 S.W
. 165 (Tenn. 191 3). It has t hus been stated t hat the juris diction of the tria l court is limitedto the c rimes which occu r within the territori al boundaries of the co unty in which i t si ts. State v. Hill , 847 S.W .2d 544 , 545 (T enn. C rim. App . 1992); see also Tenn. R. Crim. P. 18.
A l though 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) (moti on for cha nge of venue constit utes waiver of clai m that court lack ed jurisdiction); State v. Turner , 919 S.W.2d 346, 358 (Tenn. Cri m. App. 1995) (rejecti ng the defen dant’s cl aim that the trialcourt was wi thout jurisdict ion to accept hi s guilt y plea and hol ding that he waived the issue by ra ising the iss ue for the first time on appea l); State v. S mith ,-4-

906 S.W.2d 6, 9 ( Te nn. C rim. A pp. 19 95) (w aiver b y cons enting to trial co urt’s ruling that prosec ution would b e more a ppropria te in anoth er coun ty); State v. Gilbert , 751 S.W.2 d 454 , 46 2 (Te nn. Cri m. App. 1988) (waiver by fai ling to stand on motion for j udgment of acquit tal and by f

ailingto mak e refe rences to t he r ecord). Obviou sly, if venue c ould no t be waive d, a defen dant’s req uest for a change of venue coul d never be granted.
In a criminaltrial , the burden i s on the State to p rove venue b y a preponderance of the evide nce. Harvey v . State , 376 S.W.2d 497, 4 98 (Tenn. 1964). Slight evidenceis e nough to carry the prosecut ion’s bur den 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 obv iate the n ecessity of any actualevidence bei ng presented, t he trialjudge m us t nevertheless be satisfied that there is a fact ual basis f or the ple a. T enn. R. Crim. P. 11(f) . Up on a ple a of gui lty, a fa ctu al b asi s ma y be a nd usually is sh own simp ly by the prosecut or’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 t hat 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 r equirement that

the State prove venue by a preponder ance of the evi dence.
The Defendant in the case at bar was ch arged w ith committ ing thir teen counts of aggravated rape in Sullivan County, Te nnessee . In the Criminal C ourt of Sulliv an County, Tennessee, he plead ed guilty to these char

ges. Once a-5-

criminal defen dant h as so lemn ly admitted i n open court t hat he is in fact guil ty of the offense with wh ich he is charge d, he may n ot thereafter ra ise independent cl aims relating to the deprivation of constitutional rights occ urring pri or to th e entry of the guilty plea
. State v. Hodges , 815 S.W .2d 151 , 153 (T enn. 19 91). We believe tha t a cr iminal defendant waives hi s right t o challenge venue upon pleading guilty. Rec or v. St ate , 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 jur isdict ional in a cri minal case, it may be waived. We conclud e that a gu iltyplea wa ives venu e. Therefore, ev en if one or more of the Defenda nt’s cri mes actuall y took place outside of Sulliv an 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 guil ty. The j udgmen t of the trial court denying the Defendant habeas corpus reli ef is accor

dingly af firmed.

____________________________________ DAVID H. WELLES , JUD GE
CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE