### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

ay 23, 2001
KENNETH STOMM v. STATE OF TENN ESSEE Direct Appeal from the Criminal Court for Morgan County

No. 8532 E. Eugene Eblen, Judge

No. E1999- 00392-CCA- R3-PC August 2, 2001
The petiti oner, Kenneth Stomm, appeals the trial court's denial of his petition for writ of habeas corpus. The single issue presented for review is whether the petition was properly dismissed without an evidentiary hearing. The judgment is affirme d. Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.
G ARY R. W ADE , P.J., delivered the op inion o f the court, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined.
Joe H. W alker, Public Defender, and Walter B. Johnson, II, Assistant Public Defender , for the appellant, Kenne

th Stomm.
Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney

General; and Scott McCluen, District Attorney General, for the appellee, State of Tenne ssee.

OPINION
On July 5, 1988, the petitioner entered a plea of guilt to third degree burglary

in R hea C oun ty, Tennesse e. Judge Leon C. Burns, whose Thirteenth Judicial District includes Putnam, Clay, DeKalb, Overton, Pickett, White, and Cumberland Counties, accepted the plea and imposed a sentence of 10 years.
On November 2, 1998, the petitioner filed a petition for writ of habeascorpus. As grounds for relief, the petition er alleged th at the judgm ent entered on his guil ty plea was void because Ju dge Burns, elected to offic

e in the Thirteenth Judic

ial District,had not been desig nated by the

supreme court to preside in this ca

se and was not "a

sitt ing ju dge of the 12 th Judicial District . . . ." Rhea County is among several counties located within the Twelfth District. In response, the state asserted that the judgment was valid because Tennessee Code Annotated § 17-2-205, which was repealed by 1997 Tenn. Pub. Act

ch. 430, § 1, author

ized interchang

e among judges

at the time of the pl

ea:-2- Criminal judges may

have the right to

interchange w

ith each other an

d with judges of all othe r courts of r ecord in the state when causes exist making an interchange necessary or desirable , or mutually convenient by agr eement.
Tenn. Code Ann. § 17-2-205 (1980). Thestate also contended that the petitioner, before entering his plea of guilt, had executed a written waiver of his right to t ri al by jury and his right to venue within Rhea County. See Wilson v. Wilson , 877 S.W.2d 271 (Tenn. Ct. App. 1993).
In this state, a writ of habeas corpus may be granted only when a petitioner

has established lack of jurisdiction for the order of confine ment or that he is oth

erwise entitled to

immediate relea

se because of the expiration of his sentence. See Ussery v. Avery , 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norve

ll , 443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his liberty, under any pretense whatsoever, . . . may pros ecute a writ of habeas

corpus, to inquire into

the cause

of such imprisonment. . . ." Tenn. Code Ann. § 29-21-101. The writ of habeas corpus, however

, is available only

when it appears on the face of the judgment or the record that the trial court was without jurisdiction to convict or sentence the defendant or that the sentence of imprisonment has otherwise expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn . 1993); Potts v. State , 833 S.W.2d 60, 62 (Te nn. 1992). Trial c

ourts may sum

marily dismiss

a petition for wri

t of habeas corpus without the appointment of a lawyer and without an evidentiary

hearing if ther

e is nothing on the face of the judgment to indicate that the convictions addressed t herein are void. Passarella v. Stat

e , 891 S.W.2d 619 (Tenn. Crim. App. 1994).
Article I, Section 9 of the Tennessee Constitution provide

s that in all

criminal prosecutions by indictment or presentment, the accused has a right to a speedy, public trial by an impartial jury of the county in

which the crime w

as committed. The s

tate must prove tha

t t he o ffense was committed in the county of the indictment. Harvey v. S tate , 213 Tenn. 608, 612, 376 S.W.2d 497 (1964). Because venue is not an element of the offense, it may be established by a preponderance of the evidence by either direct or circumstantial evidence. State v. Baker , 639 S.W.2d 670, 672 (Tenn. Crim. App. 1982); Hopper v. State , 205 Tenn. 246, 327 S.W.2d 448 (1959). Ordinarily, the jurisdiction of the tria

l 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).
The entry of a valid guilty plea ordinarily " constitutes an admission of all facts alleged and a waiver of procedural and constitutional defects in the proceedings that

occurred before the entry of the plea." State v. Smith , 996 S.W.2d 845, 846 (Tenn. Crim. App. 1999). The only jurisdictional objection not waived by a defendant's failure to raise it in

a pretrial motion is lack of subject matter jurisdiction. Tenn. R. Crim. P. 12(b)2) ; State v. Nixon , 977 S.W.2d 119, 121 (Tenn. Crim. App. 1997). "Subject matter jurisdiction is the power of the cour t to hear and dec ide a particular

cause of action." Nixon , 977 S.W.2d at 121.
While con cedi ng th at h e si gned a wai ver o f hi s ri ght t o ve nue in R hea C oun ty, the petitioner argues that the trial court lacked jurisdiction because the waiver was not signed by the district att orn eys general from b oth Rhea and Cumber

land Counties a

s requir ed by Tennessee Code-3-

Annotated § 40-35-214 (1982). Th e statute requires the written approval of the district attorney general and the court having cri min al j uri sdi cti on f or ea ch co unt y. Id . The petitioner submits that "there is no record of a writing from the appropriate Attorney G eneral in Rhea County or the Judge in Rhea County

so as to comply with the statutory provision." While the state does not contest the applicability

of the terms of th

e statute, it a

rgues that t he petitio ner waived h is right to challenge venue by entering a guilty plea. It cites Ellis v. Carlton , 986 S.W.2d 600, 601-02 (Tenn. Crim. App. 1998), for the fo

llowing propositio

n: When a defendant pleads guilty, he waives the requirement that the State . . . prove each element of the offense beyond a r easonabl e doubt. In pleading guilty, a defendant also waives the requirement that the State prove venue by a preponderance of the evidence.
A t the time of the conviction in this case, Tennessee Code Annotated § 17-2- 206 (1980 ) provided that a

criminal court judge sitting by intercha nge "in the cir

cuit or division of a

nother, shall have the same power and jurisdiction as the judge . . . in w hose place he is

acting." As early as 1849, our supreme court recognized tha t a j udge presiding by interchange ha d the same powers and jurisdiction as the regular judge. Elms v. State , 29 Tenn. 128 (1849).
On July 5, 1998, Assistant

District Attorney J. Michael Taylor, now District Attorney General for the Twelfth

Judicial District, approved a motion signed by the petitioner and his counsel, John B. Putol, to "Allow Waiver of Trial by Jury and Venue." Tennessee Code Annotated § 40-35-214 provides in pertin

ent part as follow

s: (a) A defendant arrested, held, or present in a county other than that in

which an indictment or infor

mation is pending a

gainst him may

state in writi ng that he w ishe s to plead guilty, to waive trial in the county in which the indictment or information is pending, and to consent to the disposition of the case in the county in which he was arreste

d, held or present, subject to the approval of the district attorney general and the court hav

ing a crimi

nal jurisd iction for each county. Upon receipt of the def endant's statement and of the written approval of the appropriate district att orn eys general and courts, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk

of the court for the county in which the defendant was arrested, held, or present, and the prosecution shall continue in that county. Tenn. Code Ann. § 40-35-214(a) (1982).
That a judge havin

g crim inal jurisdiction in Rhea County and the district attorney gener al there did not sign the waiver does not benefit the petitioner. In our view, the statute does not confer any rights on the accused. It is director y rather th an mandatory

, designed to est

ablish the provisions by which the district attorneys ge neral and judges exercise authority over the prosecution and disposition of criminal charges within their district. That a judge and a district attorney general of-4-

one judicial district failed to execute documents of appr

oval would not serv

e as a basis

of relief for a defendant who has waived the i ssue of venue and, by all appearances, entered a knowing and voluntary guilty plea

to third degree

burglary . Regardless o f any procedural deficiencies between the judicial dis t ricts, the recor d does not establish

that the trial cour

t was without jurisdi

ction to impose judgment. There was subject matter jurisdiction. Accordingly, the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE