Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs June 27, 2017
from the Criminal Court for Morgan County No. 2011-CR-41A
Paul G. Summers, Senior Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.,
CAMILLE R. McMULLEN, JUDGE
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.
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[.]"
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.
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 ...