         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 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 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that the judgment was valid because Tennessee Code Annotated § 17-2-205, which was repealed by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:
              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 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 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




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