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State v. Brichetto

Court of Criminal Appeals of Tennessee, Knoxville

September 6, 2017

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

          Assigned on Briefs June 27, 2017

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

         A Morgan County Criminal Court jury convicted the Defendant-Appellant, John H. Brichetto, Jr., and his wife of theft of property valued at $60, 000 or more but less than $250, 000, a Class B felony, and Mr. Brichetto was subsequently sentenced as a Range I, standard offender to ten years' incarceration. In exchange for a reduced sentence for his wife, Mr. Brichetto executed a written waiver of his post-judgment rights, including the right to seek relief from his conviction or sentence, the right to appeal, the right to file a petition for post-conviction relief, and the right to collaterally attack his conviction. The trial court, after determining that Mr. Brichetto knowingly and voluntarily agreed to the waiver, accepted the written waiver and sentenced Mr. Brichetto's wife in accordance with the settlement agreement. Thereafter, Mr. Brichetto filed a motion to reduce his sentence pursuant to Tennessee Rule of Criminal Procedure 35, which the trial court denied without a hearing after reiterating that Mr. Brichetto knowingly and voluntarily waived his right to seek relief from his sentence. The court later entered a supplemental order denying the Rule 35 motion on the basis that it was untimely. On appeal, Mr. Brichetto argues (1) the trial court erred in denying his Rule 35 motion on the basis that it was untimely, and (2) the trial court erred in denying this motion based on his written waiver because the waiver is void. We affirm the judgment of the trial court.

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

          John H. Brichetto, Jr., Pikeville, Tennessee, pro se.

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

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

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On July 8, 2015, a Morgan County Criminal Court jury convicted Mr. Brichetto and his wife, Mrs. Brichetto, of theft of property valued at $60, 000 or more but less than $250, 000. At Mr. Brichetto's sentencing hearing on August 19, 2015, the trial court applied the following enhancement factors: that "[t]he defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range, " that "[t]he defendant was a leader in the commission of an offense involving two (2) or more criminal actors, " that "[t]he offense involved more than one (1) victim, " and that "[t]he defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense[.]" T.C.A. §§ 40-35-114(1), (2), (3), (14). After correctly determining that Mr. Brichetto was a Range I, standard offender with a sentencing range of eight to twelve years, the trial court imposed a sentence of ten years' incarceration. A judgment of conviction reflecting Mr. Brichetto's ten-year sentence was entered on August 24, 2015.

         Thereafter, the trial court scheduled Mr. Brichetto's motion for new trial as well as Mrs. Brichetto's motion for judgment of acquittal and possible sentencing hearing for October 14, 2015. At the beginning of this hearing, the trial court said it was prepared to hear Mr. Brichetto's motion for new trial and Mrs. Brichetto's motion for judgment of acquittal or partial acquittal as well as to conduct her sentencing hearing, if necessary. The court stated, "I was 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[.]"

         The attorneys representing each party confirmed that the parties had reached an agreement and that Mr. and Mrs. Brichetto had each signed a waiver of rights prepared by the State. Pursuant to this agreement, Mr. Brichetto would withdraw his motion for new trial, waive his right to a motion for new trial and motion for judgment of acquittal, and waive all post-judgment rights to challenge his conviction and sentence and, in exchange, Mrs. Brichetto's conviction for the Class B felony theft would be reduced to Class C felony theft by a judgment of partial acquittal, the State would not oppose Mrs. Brichetto's request for diversion for a period of six years, Mrs. Brichetto would receive supervised probation pending her completion of diversion, Mrs. Brichetto would be jointly and severally liable with Mr. Brichetto for restitution in the amount of $142, 215.00, and Mrs. Brichetto would waive her right to a motion for new trial or motion for judgment of acquittal as well as waive all post-judgment rights to challenge her conviction and sentence.

          During the hearing, the trial court thoroughly questioned Mr. Brichetto regarding the terms of this agreement:

[Trial Court]: Mr. Brichetto tell me in your own words what you're doing today.
Mr. Brichetto: I'm waiving all my rights to appeal of any nature. I . . . I assume this waiver is a basically a contract between myself and the State, is that . . . am I correct in that matter? Is that . . .
[Trial Court]: . . . [T]he waiver is basically a document that says you understand what you are doing.
Mr. Brichetto; 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.
Mr. Brichetto: Okay.
[Trial Court]: But basically do you understand?
Mr. Brichetto: Yes.
[Trial Court]: You understand basically that you are conceding, you're saying no Motion for New Trial, no appeal. [You are saying] I'm not going to come back in here eleven months and twenty-nine days and file a Post[-] conviction Relief Petition for whatever reason, that this is the end of the story, 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?
Mr. Brichetto: I do.
. . . .
[Trial Court]: [D]o you understand that this is part and par[cel] . . . of the deal or the agreement that is being made with your wife[?]
Mr. Brichetto: I do.
. . . .
[Trial Court]: Alright. Do you have any ...

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