IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 23, 2001

KENNETH STOMM v. STATE OF TENNESSEE

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 petitioner, 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 affirmed. 

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which THOMAS T. WOODALL and

ROBERT W. WEDEMEYER, JJ., joined.

Joe H. Walker, Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the

appellant, Kenneth Stomm.

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

and Scott McCluen, District Attorney General, for the appellee, State of Tennessee. 

OPINION

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

Tennessee. Judge LeonC.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 habeas corpus. As grounds

for relief, the petitioner alleged that the judgment entered on his guilty plea was void because Judge

Burns, elected to office in the Thirteenth Judicial District, had not been designated by the supreme

court to preside in this case and was not "a sitting judge of the 12th 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that the judgment was valid because Tennessee Code Annotated § 17-2-205, which was repealed by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, authorized interchange among judges at the time of the plea: 
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Criminal judges may have the right to interchange with each other and with

judges of all other courts of record in the state when causes exist making an

interchange necessary or desirable, or mutually convenient by agreement. 

Tenn. Code Ann. § 17-2-205 (1980). The state also contended that the petitioner, before entering

his plea of guilt, had executed a written waiver of his right to trial 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 confinement or that he is otherwise entitled to immediate release

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

ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or

restrained of his liberty, under any pretense whatsoever, . . . may prosecute 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 (Tenn. 1992). Trial courts may summarily dismiss a petition for writ

of habeas corpus without the appointment of a lawyer and without an evidentiary hearing if there is

nothing on the face of the judgment to indicate that the convictions addressed therein are void.

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

Article I, Section 9 of the Tennessee Constitution provides 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 was committed. The state must prove that the offense was

committed in the county of the indictment. Harvey v. State, 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 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).

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 court to hear and decide a particular cause

of action." Nixon, 977 S.W.2d at 121. 

While conceding that he signed a waiver of his right to venue in Rhea County, the petitioner

argues that the trial court lacked jurisdiction because the waiver was not signed by the district

attorneys general from both Rhea and Cumberland Counties as required by Tennessee Code
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Annotated § 40-35-214 (1982). The statute requires the written approval of the district attorney

general and the court having criminal jurisdiction for each county. Id. The petitioner submits that

"there is no record of a writing from the appropriate Attorney General 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 the statute, it argues that the petitioner waived his 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 following proposition: 

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

At the time of the conviction in this case, Tennessee Code Annotated § 17-2-206 (1980)

provided that a criminal court judge sitting by interchange "in the circuit or division of another, shall

have the same power and jurisdiction as the judge . . . in whose place he is acting." As early as 1849,

our supreme court recognized that a judge presiding by interchange had the same powers and

jurisdiction as the regular judge. Elms v. State, 29 Tenn. 128 (1849). 

On July5, 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 pertinent part as follows: 

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

an indictment or information is pending against him may state in writing that he

wishes 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 arrested, held or present, subject to the approval of the district attorney

general and the court having a criminal jurisdiction for each county. Upon receipt

of the defendant's statement and of the written approval of the appropriate district

attorneys 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 having criminal jurisdiction in Rhea County and the district attorney general

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 directory rather than mandatory, designed to establish the provisions

by which the district attorneys general and judges exercise authority over the prosecution and

disposition of criminal charges within their district. That a judge and a district attorney general of
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one judicial district failed to execute documents of approval would not serve as a basis of relief for

a defendant who has waived the issue of venue and, by all appearances, entered a knowing and

voluntary guilty plea to third degree burglary. Regardless of any procedural deficiencies between

the judicial districts, the record does not establish that the trial court was without jurisdiction to

impose judgment. There was subject matter jurisdiction. 

Accordingly, the judgment is affirmed. 

____________________________________

GARY R. WADE, PRESIDING JUDGE