Court of Criminal Appeals of Tennessee, Knoxville
JOHN H. BRICHETTO, JR.
STATE OF TENNESSEE
Assigned on Briefs April 26, 2017
from the Criminal Court for Morgan County No. 2011-CR-41A
Paul G. Summers, Senior Judge
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
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
L. Holloway, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
L. HOLLOWAY, JR., JUDGE
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.
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.
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
[The Petitioner]: I do.
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 ...