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State v. Brichetto

Court of Criminal Appeals of Tennessee, Knoxville

July 10, 2017

STATE OF TENNESSEE
v.
JOHN BRICHETTO

         Assigned on Briefs May 17, 2017

         Appeal from the Criminal Court for Morgan County No. 2011-CR-41A Paul G. Summers, Senior Judge.

         In 2012, a Morgan County jury found the Defendant, John Brichetto, guilty of theft of property valued at more than $60, 000. The trial court sentenced the Defendant to ten years of incarceration and ordered him to pay $142, 215 in restitution to the victim. In 2016, the Defendant filed one of several motions pursuant to Tennessee Rule of Criminal Procedure 36.1, seeking to correct an illegal sentence. The trial court summarily denied Rule 36.1 relief. On review, having determined that the Petitioner has failed to state a colorable claim for Rule 36.1 relief, we affirm the judgment of the trial court.

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

          John Brichetto, Pikeville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; L. Russell Johnson, District Attorney General; and Tiffany S. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J. and John Everett Williams, J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts and Procedural History

         This case arises out of the Defendant and his wife stealing property valued at more than $60, 000. A Morgan County jury found the Defendant guilty of the offense, and the trial court sentenced him to ten years as a standard Range I offender and ordered him to pay $142, 215.00 in restitution. According to the record, at the Defendant's sentencing hearing, the Defendant "formally, knowingly and voluntarily waived his rights to any and all appeals, further legal remedies, or other efforts to seek relief on any grounds" in exchange for leniency for his wife's sentence.

         The Defendant subsequently filed multiple motions challenging his sentence, including a motion to request records and for another restitution hearing. On June 28, 2016, the Defendant filed the Rule 36.1 motion to correct an illegal sentence that is the subject of this appeal. In it, he contended that his sentence was illegal because it had been enhanced improperly pursuant to Tennessee Code Annotated section 40-35-114. The trial court summarily denied relief, and it is from this judgment that the Defendant now appeals.

         II. Analysis

         On appeal, the Defendant asserts that the trial court erred when it summarily dismissed his motion based on the "Waiver of Rights." He also contends that his trial counsel failed to file a motion for new trial following his ...


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