        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 15, 2015


            JOSE A. RIVAS v. GERALD MCALLISTER, WARDEN

                 Appeal from the Criminal Court for Johnson County
                    No. CC-2015-CR-82     Stacy L. Street, Judge




                 No. E2015-01506-CCA-R3-HC – Filed March 4, 2016
                         _____________________________

In 2005, the petitioner pled guilty as a career offender to two counts of facilitation of first
degree murder, a Class A felony, and he was sentenced to serve an effective sentence of
sixty years in prison. On May 22, 2015, the petitioner filed a petition for the writ of
habeas corpus, asserting that the trial court lacked jurisdiction because, while his crimes
took place in Hancock County, his guilty pleas were entered in Greene County. The trial
court dismissed the petition, and the petitioner appeals. On review, we conclude that the
judgments are facially valid, and we affirm the dismissal of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., J., joined. ROGER A. PAGE, SP. J., not participating.

Jose A. Rivas, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Benjamin A. Ball, Senior
Counsel, for the Appellee, State of Tennessee.


                                         OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The petitioner was charged in 2004 with the first felony degree murder of Ance J.
“Pete” Pratt and Rebecca Mills Pratt in a six-count indictment. He pled guilty to two
counts of facilitation of first degree murder and was sentenced as a career offender to two
concurrent sixty-year terms. The indictments reflect that the crimes took place in
Hancock County. The judgment forms likewise indicate that the defendant was
convicted in Hancock County. Two documents, the defendant‟s signed “Negotiated Plea
Agreement” and “Waiver of Rights and Plea of Guilty,” were printed forms bearing the
phrase “In the Criminal Court of Greene County, Tennessee,” where the word “Greene”
was crossed out and replaced with a handwritten “Hancock.”

       In his petition, the petitioner asserts that he was arrested and held in Greene
County and that his guilty plea was entered in the Greene County courthouse. He asserts
that he never executed a waiver of venue, that he did not know that he had the right to be
adjudged in the county in which the crimes were committed, and that the trial court was
without jurisdiction to accept his guilty pleas. The State moved to dismiss the petition,
arguing that a guilty plea waives any challenge to venue and further noting that the
judgments appeared to be facially valid. The trial court dismissed without a hearing or
appointment of counsel. The petitioner appeals.

                                      ANALYSIS

       Article I, section 15 of the Tennessee Constitution provides that “the privilege of
the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or
invasion, the General Assembly shall declare the public safety requires it.” Habeas
corpus may be granted to “[a]ny person imprisoned or restrained of liberty… to inquire
into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101(a) (2010). The
application for the writ must be made by petition and verified by affidavit. T.C.A. § 29-
21-107(a). The granting or denial of a petition for habeas corpus relief is a question of
law reviewed de novo with no presumption of correctness afforded to the trial court‟s
findings or conclusions. Edwards v. State, 269 S.W.3d 915, 919 (Tenn. 2008).

       While the statutory language “appears broad, in fact, „[h]abeas corpus under
Tennessee law has always been, and remains, a very narrow procedure.‟” Edwards, 269
S.W.3d at 919 (quoting Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993). In order to
merit relief, a petitioner must establish that the challenged judgment is not merely
voidable, but void. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005). A judgment is
voidable when it is “facially valid and requires proof beyond the face of the record or
judgment to establish its invalidity.” Summers v. State, 212 S.W.3d 251, 256 (Tenn.
2007). A void judgment, on the other hand, is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Id. “[T]he question
of whether a judgment is void „is always one of jurisdiction, that is, whether the order,
judgment or process under attack comes within the lawful authority of the court or judge
rendering or issuing it.‟” Edwards, 269 S.W.3d at 920 (quoting State ex rel. Anglin v.

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Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979), overruled on other grounds by Archer, 851
S.W.2d at 162-64).

       Relief is only available when “„it appears upon the face of the judgment or the
record of the proceedings upon which the judgment is rendered‟ that a convicting court
was without jurisdiction or authority to sentence a defendant, or that a defendant‟s
sentence of imprisonment or other restraint has expired.” Archer, 851 S.W.2d at 164
(quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)).

       The habeas corpus court has the authority to dismiss the petition if the petition
shows that the petitioner “would not be entitled to any relief.” T.C.A. § 29-21-109.
Accordingly, if the petition fails to establish that the judgment is void, the habeas corpus
court is not obligated to hold a hearing on the allegations. Hogan, 168 S.W.3d at 755.

      Article I, section 9 gives the accused the right to a trial “by an impartial jury of the
County in which the crime shall have been committed.” The jurisdiction of a court
extends only “to the crimes which occur within the territorial boundaries of the county in
which it sits.” Ellis v. Carlton, 986 S.W.2d 600, 601 (Tenn. Crim. App. 1998).
Accordingly, venue is considered a jurisdictional element. Id.

       The petitioner is nevertheless not entitled to relief. The writ of habeas corpus may
only be granted if it appears “upon the face of the judgment or the record of the
proceedings upon which the judgment is rendered” that the judgment is void. Archer, 851
S.W.2d at 164 (quoting Galloway, 45 Tenn. (5 Cold.) 326, 336-37). In this case, all of
the documents comprising the face of the judgment and record of the proceedings1
indicate that the crimes and convictions took place in Hancock County. The judgments
and indictments reflect that the petitioner was indicted and pled guilty in Hancock
County. The plea agreement documents show that the word “Greene” was crossed out
and replaced with a handwritten “Hancock.” The only documents referring to the
petitioner‟s presence in Greene County are a letter from his attorney and one from the
Hancock County Circuit Court Clerk. A judgment which is “facially valid and requires
proof beyond the face of the record or judgment to establish its invalidity” is merely
voidable and not void. Summers, 212 S.W.3d at 256. Here, the judgments are facially
valid. Accordingly, the petitioner is not entitled to relief.

       1
          The petitioner includes as an attachment to his appellate brief a transcript of the hearing
on his guilty plea. While we do not consider a transcript attached to a brief because it is not part
of the record, State v. Matthews, 805 S.W.2d 776, 783 (Tenn. Crim. App. 1990), we note that the
transcript reflects that the proceedings took place in the Criminal Court for Hancock County, that
the court was addressing “the matters in Hancock County,” and the court informed the defendant
he was “charged and pleading guilty in two counts…in Hancock County.”
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       We note parenthetically that, despite the fact that venue is jurisdictional, venue
may be waived. Ellis, 986 S.W.2d at 601. In general, a guilty plea “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). While the petitioner is correct that challenges to the trial
court‟s subject matter jurisdiction may be raised at any time, other defects in the
indictment are subject to waiver by the accused. State v. Nixon, 977 S.W.2d 119, 120-21
(Tenn. Crim. App. 1997) (“„Lack of jurisdiction‟ refers to subject matter jurisdiction
which a defendant has no power to waive.” (Quoting Pon v. United States, 168 F.2d 373,
374 (1948))). “In pleading guilty, a defendant … waives the requirement that the State
prove venue by a preponderance of the evidence.” Ellis, 986 S.W.2d at 602.
Accordingly, the petitioner‟s claims are not, in any event, a basis for relief.


                                    CONCLUSION

      Because the judgments are valid on their face, we affirm the habeas corpus court‟s
dismissal of his petition.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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