FILED

September 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

JONATHAN ELLIS, ) C.C.A. NO. 03C01-9711-CR-00493

)

Appellant, )

)

) 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 COUNTY

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 Avenue North

Nashville, TN 37243

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Jonathan Ellis, appeals as of right from the dismissal of his

petition for habeas corpus relief. The Defendant is an inmate in the custody of

the Department of Correction. According 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 him of these offenses because the crimes were

actually committed in Hawkins County rather than Sullivan County. The trial court

summarily dismissed the petition, concluding that the allegation of lack of venue

did not provide the Defendant grounds for habeas corpus relief. We affirm the

judgment of the trial court. 

The record reflects that the Defendant was charged in each count of the

presentment with committing the crime in Sullivan County, Tennessee. In the

written plea of guilty signed by the Defendant, the Defendant stated “that he is

guilty of the charge(s) because the facts which he knows to exist equal the

elements of the charge(s) as those elements have been explained to him by the

court. Defendant therefore states that there is a factual basis for his plea.”

Habeas corpus relief is available only when a convicting court is without

jurisdiction or authority to sentence a defendant or when that defendant’s term
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of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993).

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 over these offenses and therefore his convictions are void. 

Because Article 1, Section 9 of the Tennessee Constitution gives a person

accused of a crime the right 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 (Tenn. 1964); Norris v. State, 155 S.W .

165 (Tenn. 1913). It has thus been stated that the jurisdiction of the trial court is

limited to the crimes which occur within the territorial boundaries of the county in

which it sits. State v. Hill, 847 S.W .2d 544, 545 (Tenn. Crim. App. 1992); see

also Tenn. R. Crim. P. 18.

Although venue is a jurisdictional matter, Tennessee courts have

consistently held that venue can be waived in certain circumstances. See State

v. Nichols, 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 raising the issue for the first time on appeal); State v. Smith,
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906 S.W.2d 6, 9 (Tenn. Crim. App. 1995) (waiver by consenting to trial court’s

ruling that prosecution would be more appropriate in another county); 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). Obviously, if venue could not be waived, a defendant’s request for a

change of venue could never be granted.

In a criminal trial, the burden is on the State to prove venue by a

preponderance of the evidence. Harvey v. State, 376 S.W.2d 497, 498 (Tenn.

1964). Slight evidence is enough to carry the prosecution’s burden of

preponderance if it is uncontradicted. State v. Bloodsaw, 746 S.W.2d 722, 724

(Tenn. Crim. App. 1987). Although 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

simply by the prosecutor’s statement of the evidence. State v. Lord, 894 S.W.2d

312, 316 (Tenn. Crim. App. 1994).

When a defendant pleads guilty, he waives the requirement that the State

be required to prove each element of the offense beyond a reasonable doubt.

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, Tennessee. In the Criminal Court

of Sullivan County, Tennessee, he pleaded guilty to these charges. Once a
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criminal defendant has solemnly admitted in open court that he is in fact guilty of

the offense with which he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights occurring prior to the

entry of the guilty plea. State v. Hodges, 815 S.W .2d 151, 153 (Tenn. 1991). We

believe that a criminal defendant waives his right to challenge venue upon

pleading guilty. Recor v. State, 489 S.W.2d 64, 69 (Tenn. Crim. App. 1972);

Weaver v. State, 472 S.W.2d 898, 902 (Tenn. Crim. App. 1971).

Even though venue is jurisdictional in a criminal case, it may be waived.

We conclude that a guilty plea waives venue. Therefore, even if one or more of

the Defendant’s crimes actually took place outside of Sullivan County, the

Sullivan County Criminal Court had jurisdiction to convict the Defendant upon his

pleas of guilty. The judgment of the trial court denying the Defendant habeas

corpus relief is accordingly affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE