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Brichetto v. State

Court of Criminal Appeals of Tennessee, Knoxville

July 18, 2017

JOHN H. BRICHETTO, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs April 26, 2017

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

          John H. Brichetto, Jr., Pro Se, Pikeville, Tennessee.

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

         The Petitioner, John H. Brichetto, Jr., and his wife were convicted of Class B felony theft of property. The Petitioner was sentenced to ten years' incarceration. As part of an agreement for a reduced sentence for his wife, the Petitioner executed a written waiver of his right to appeal, his right to file for post-conviction relief, and his right to collaterally attack his conviction. The Petitioner then filed a petition for post-conviction relief. Finding that the waiver was entered knowingly, intelligently, and voluntarily, the post-conviction court summarily dismissed the petition. Following our review, we affirm the judgment of the post-conviction court.

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

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Procedural History

         On July 8, 2015, the Petitioner and his wife, Lisa Horn Brichetto, were convicted by a Morgan County jury of theft of property valued at $60, 000 or more but less than $250, 000. At the sentencing hearing on August 20, 2015, the Petitioner was sentenced to ten years' incarceration as a Range I offender. Mrs. Brichetto's sentencing hearing was rescheduled due to the illness of her attorney.

         The trial court scheduled the Petitioner's Motion for New Trial and Mrs. Brichetto's sentencing hearing for October 14, 2015. At the beginning of the October 14 hearing, the court announced that it was prepared to hear the Petitioner's Motion for New Trial and Mrs. Brichetto's Motion for Judgment of Aquittal or Motion for Judgment of Partial Aquittal, and it was prepared to conduct Mrs. Brichetto's sentencing hearing. The court also stated that it "had been informed over the last two or three weeks that there may have been a global settlement made in both cases and during the conference right before we came out here today it was my understanding that there was a reasonable probability that a settlement had been made[.]" Counsel announced that the parties had agreed to a settlement and that the Petitioner and Mrs. Brichetto had each signed a waiver of rights. The terms of the settlement provided that: (1) Mrs. Brichetto's Class B felony theft conviction would be set aside upon the trial court granting her Motion for Judgment of Acquittal, (2) Mrs. Brichetto would enter a conditional guilty plea to Class C felony theft and be granted diversion for a period of six years, during which time she would be on supervised probation, and (3) the Petitioner would waive his right to appeal, his right to file for post-conviction relief, and his right to collaterally attack his conviction.

         The court then conducted an extensive questioning of Mr. Brichetto, including the following dialogue:

[Trial court]: Mr. Brichetto tell me in your own words what you're doing today.
[The Petitioner]: I'm waiving all my rights to appeal of any nature. I [] assume this waiver is [] basically a contract between myself and the State, is that . . . am I correct in that matter? Is that . . .
[Trial court]: This waiver . . . is basically a document that says you understand what you are doing.
[The Petitioner]: Okay.
[Trial court]: That you understand what you're giving up. Then the waiver is used by this Court to effectuate a Judgment and that becomes a Decision.
[The Petitioner]: Okay.
. . .
[Trial court]: You understand basically that you are conceding, you're saying no Motion for New Trial, no appeal. I'm not going to come back in here in eleven months and twenty-nine days and file a [p]ost[-] conviction [r]elief [p]etition for whatever reason, that this is the end of the story, I'm going to go to . . . I'm going to go to the Department of Correction at thirty percent and hopefully I'll be considered for parole at the earliest practical time, no less than thirty percent. Do you understand that?
[The Petitioner]: I do.

         After questioning Mrs. Brichetto about the agreement and her sentence, the trial court asked both the Petitioner and Mrs. Brichetto the following question:

[Trial court]: . . . I'll tell you this, as to both Defendants, I find that both Defendants have made their waivers knowingly, providently, intelligently and under no coercion or promises other than that which was promised to ...

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