07/18/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 26, 2017

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

Appeal from the Criminal Court for Morgan County

No. 2011-CR-41A Paul G. Summers, Senior Judge

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No. E2016-01855-CCA-R3-PC

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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 postconviction 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.

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.

OPINION

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 
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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.
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. . .

[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 be the recommendations. Do you agree Mrs. Brichetto?

Mrs. Brichetto: Yes. Your Honor.

[Trial Court]: Do you agree Mr. Brichetto?

[The Petitioner]: Yes.

The Petitioner’s waiver of rights, which was entered as an exhibit to the hearing

provided in part:

4. By signing this [w]aiver, and as evidenced by his signature below, [the 

Petitioner] does hereby agree that he waives any and all future appeals or

other efforts to seek relief from his conviction in this case on any grounds, 

including but not limited to any errors or omissions committed by the 

Court, any errors or omissions committed by defense counsel, or any errors 

or omissions by the prosecution, committed during trial or at any other 

point in these proceedings to date. This waiver includes but is not limited 

to all of the judicial remedies mentioned in the foregoing paragraph number 

two (2). Further, this waiver is understood to be complete and irrevocable 

once it is signed by [the Petitioner] and accepted by the Court. The result 

of this [w]aiver is that all proceedings in the matter of State of Tennessee 
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vs. John H. Brichetto, Jr. and Lisa Horn Brichetto, Morgan County

Criminal Court Case No. 2011-CR-41A, B, and all proceedings that may 

otherwise have followed on appeal or post[-]conviction, are effectively and 

permanently ended, leaving only the service of [the Petitioner’s] sentence 

as previously ordered as well as the payment of costs and restitution.

5. As part of this waiver and agreement, [the Petitioner], explicitly 

understands, knowingly, freely, and voluntarily waives, and hereby swears 

before the Court under oath, that any and all further actions on this matter, 

or any other appellate or post[-]conviction proceedings that may have 

followed from this conviction, have been permanently foreclosed with this 

[w]aiver. If, at any time, without statutory limitation, and for any reason, 

[the Petitioner] initiates, files, or in any other way resurrects any action in 

this matter, or any other appellate or post[-]conviction proceeding that may 

have stemmed from this matter, [the Petitioner] hereby affirms that all said 

actions are to be immediately, automatically, and summarily dismissed with 

all costs taxed to [the Petitioner].

6. This waiver is executed knowingly and voluntarily after receiving advice 

of counsel with regard to the meaning of the waiver of rights named herein.

The waiver of rights was signed by the Petitioner and counsel for the Petitioner, 

witnessed by the deputy clerk on October 12, 2015, and filed in the Criminal Court of 

Morgan County on October 14, 2015. At the conclusion of the hearing, Mrs. Brichetto

was sentenced pursuant to the global agreement. On October 16, the trial court entered 

an Order stating: 

After questioning the defendant, the Court finds the waiver was

agreed to knowingly, intentionally, providently, and under no coercion 

other than the agreed-upon plea arrangement. The Court accepts defendant 

John Brichetto’s waiver and dismisses the motion for new trial. 

Thereafter, the Petitioner filed a motion to reduce his sentence, which was 

summarily denied by the trial court. The Petitioner’s appeal from the denial of his 

motion is pending.1 

 

1 The direct appeal of the motion to reduce sentence is docketed as number E2016-01001-CCAR3-CD. The transcript of the October 14, 2015 hearing was filed by the Petitioner in the direct appeal. 

By order entered March 24, 2017, this court directed “the appellate court clerk to prepare a certified copy 

of the October 14, 2015 transcript contained in E2016-01001-CCA-R3-CD for inclusion in the appellate 

record in this case so that the court may take judicial notice of the transcript in its consideration of this 

appeal.”
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The Petitioner then timely filed a pro se petition for post-conviction relief, which

was denied without hearing. The post-conviction court stated in its written order:

The Court has carefully reviewed the petition and the record. The Court 

finds that the combination of no appeal filed and the Petitioner’s signed 

waiver of rights is dispositive to the Court’s ruling on the merits of the 

Petition. Each issue raised by the Petitioner is subsumed within the scope 

of a waiver signed by the Petitioner. Pursuant to Tenn[essee] Code 

Ann[otated] [section] 40-30-106(f) which states in pertinent part “. . . [i]f 

the facts alleged, taken as true, fail to show that the petitioner is entitled to 

relief or fail to show that the claims for relief have not been waived or 

previously determined, the petition shall be dismissed.”2

. . . .

The Court finds the petition for post-conviction relief fails to state a 

colorable claim because all claims of the Petitioner have been waived either 

by express waiver or by failure to appeal. The Petitioner is not entitled to 

relief. The post-conviction relief petition is dismissed.

The Petitioner appeals from the summary dismissal of his petition.

Analysis

Although there was no evidentiary post-conviction hearing, the Petitioner in his 

brief argues the merits of the four claims raised in his post-conviction petition: 

(1) [that] trial counsel provided ineffective assistance in the 

following particulars: 

 A. Failure to investigate and prepare for trial[.]

 B. Failure to produce important defense witnesses.

 C. Failure to produce expert witnesses.

 

2

In this opinion, we address the waiver of the statutory right to file a petition for post-conviction 

relief as opposed to a waiver of claims for relief under Tennessee Code Annotated section 40-30-106(f) 

and (g).
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 D. The cumulative effect of the foregoing errors. 

(2) that the State committed prosecutorial misconduct in withholding 

exculpatory evidence.

(3) that he was denied the right to represent himself at trial. 

(4) [that] [t]he court violated [the Petitioner]’s due process rights 

granted to him by the U[.]S[.] Constitution, when the court allowed the 

state to offer and [the Petitioner] was coerced to accept a guilty plea 

[disguised as a Motion for Waiver of Rights] that denied [the Petitioner] the 

ability to challenge his conviction, while providing his wife with a 

mitigated sentence, after they had both been convicted at trial by a jury of 

their peers. See Apprendi v N[ew] J[ersey], 530 U.S. 466 (2000).

The Petitioner filed a Reply Brief in which he claimed that “[t]he trial court was 

without jurisdiction to hear and adjudicate the motion for new trial and waiver of rights 

because no motion for new trial was timely filed.”

The claim raised in the reply brief was not raised in the post-conviction relief 

petition and was raised for the first time on appeal and is therefore waived. See State v. 

Willis, 496 S.W.3d 653, 707 (Tenn. 2016), cert. denied, 137 S. Ct. 1224 (mem.) (2017)

(“In an ordinary, non-capital criminal case, arguments not first raised in the trial court are

waived on appeal.”)

Claims (1), (2), and (3) listed above involve issues related to the jury trial in which 

the Defendant and his wife were convicted. Those claims have not been addressed by the 

post-conviction court because the post-conviction court determined that the Petitioner 

waived his right to seek post-conviction relief. The State argues that the post-conviction 

court correctly dismissed the petition because the Petitioner knowingly and voluntarily 

waived his right to file for post-conviction relief. 

As discussed below, we conclude that a petitioner can waive his right to seek postconviction relief. We further conclude that the Petitioner’s claim (4), which deals with 

the validity of his waiver, fails to state a colorable claim requiring appointment of 

counsel and an evidentiary hearing. 
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Waiver of the Right for Post-Conviction Relief

Our supreme court specifically addressed the issue of whether a defendant could

“knowingly and voluntarily waive[] his or her right to post-conviction review” in Serrano 

v. State, in which the court stated:

As with the right to appeal, there is no constitutional duty to provide postconviction relief procedures. Burford v. State, 845 S.W.2d 204, 207 (Tenn.

1992). Rather, the right to post-conviction relief is created by statute. See

Tenn. Code Ann. §§ 40-30-102, -103, -104 (2003). “When there is no 

constitutional or statutory mandate, and no public policy prohibiting, an 

accused may waive any privilege which he is given the right to enjoy.”

Schick v. United States, 195 U.S. 65, 72 (1904). Because we are unable to 

find a mandate otherwise, we conclude that a petitioner may also waive the 

right to post-conviction relief.

Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004). The supreme court ultimately 

determined that Serrano’s post-verdict sentencing agreement, which only waived his right 

to appeal, was insufficient to waive his right to post-conviction relief. Id. However,

Serrano clearly recognized that a petitioner may waive the right to post-conviction relief, 

in the same manner that a defendant may waive a fundamental constitutional right, if the 

waiver is knowing and voluntary. See id. n.2 (noting that the United States Court of 

Appeals for the Sixth Circuit has held that a defendant can waive his right to collaterally 

attack his sentence if the waiver is knowingly and voluntarily made); see also Boykin v. 

Alabama, 395 U.S. 238, 242 (1969) (fundamental constitutional rights must be 

voluntarily and knowingly waived during entry of a guilty plea), Lovin v. State, 286 

S.W.3d 275, 288 (Tenn. 2009) (waiver of defendant’s right to appointed counsel must be 

knowing and intelligent), Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005) (noting that 

the Tennessee Supreme Court has previously recognized that a defendant can waive his 

right to post-conviction relief), Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), on 

reh’g (Mar. 30, 2000) (fundamental constitutional right to testify must be personally,

knowingly, intelligently, and voluntarily waived).

Voluntary and Knowing Waiver

The Petitioner avers that his waiver of post-conviction relief was not voluntary and 

knowing. In his brief, the Petitioner claims that he was subjected to “duress” as a direct 

result of the conviction of the Petitioner and Mrs. Brichetto, stating:

In this case, [the P]etitioner and his wife (Lisa Horn Brichetto) were 

both convicted by a jury verdict at trial for theft over sixty thousand dollars, 
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a class B felony. Thus, according to state law, this crime carries the 

MANDATORY minimum sentence of eight to twelve years in a state 

prison for a range 1 offender.

However, after [the P]etitioner was sentenced and placed in TDOC 

custody, and his wife was awaiting her sentencing hearing, the state 

approached [the P]etitioner and his wife through their attorneys, with a plea 

agreement (that was disguised as a Motion for Waiver of Rights.) To do 

such is not an acceptable practice in Tennessee. As a matter of fact, plea 

agreements cannot be entered into after a jury verdict has been handed 

down, because it would violate the state’s mandatory minimum sentencing 

laws. In any case, the agreement was offered to [the P]etitioner and his 

wife. It required [the P]etitioner to agree to be sentenced to ten (10) years 

in state prison, as well as he had to waive his right to all remedies, both 

state and federal, to challenge his conviction. In return for agreeing to this, 

the state would allow his wife to receive a mitigated sentence below the 

eight[-]year minimum where she would not have to serve any prison time.

This agreement put [the Petitioner] under extreme duress. On one 

hand, as a husband and father, he did not want to see his wife go to prison 

where she would be separated from their daughters, especially for a crime 

she did not commit. On the other hand, he did not want to give up his right 

to challenge his wrongful conviction. But the stress of his wife going to 

prison finally got to him and he was coerced into signing the agreement.

However, since this agreement is a violation of state law and of the 

state’s common sentencing procedures, it also violates [the P]etitioner’s 

constitutional right to due process making the agreement void and 

nonbinding. Further, even if this agreement was legal (which it is not), it 

would still be void because neither party to the contract or agreement can 

enter into it under duress. Thus, in this case, [the P]etitioner was clearly 

under duress from the state threatening to put his wife in prison, separated 

from their children, if he didn’t sign the agreement. Therefore, the 

agreement is void.

In its order dismissing the petition, the post-conviction court stated the following 

about the Petitioner’s claim that he was coerced into signing the waiver:

The Petitioner mistakenly asserts that he was denied his 

constitutional rights because he was “coerced” into signing the waiver 

because he did not want his wife to go to prison and be separated from their 
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children. Such motivation is not “coercion” but rather a rational realization 

that she had also been found guilty by the jury of the same crime as he, and 

she was likely facing harsh punishment. Such negotiated settlements are 

common in our judicial system. Defendants are commonly given 

consideration in the form of negotiated relief or “package deals” for 

multiple defendants, and the State benefits from conservation of resources. 

The Petitioner and his wife were not coerced. They were offered a fairly 

negotiated arrangement which they chose to accept.

The Petitioner’s concern for his family, although understandable, is not 

tantamount to coercion by the State or the trial court. Any duress the Petitioner felt was 

the direct result of the Petitioner’s and Mrs. Brichetto’s criminal conduct and the

possibility that Mrs. Brichetto, like the Petitioner, might face incarceration. 

Tennessee Code Annotated section 40-30-106(d) provides: 

The petition must contain a clear and specific statement of all grounds upon 

which relief is sought, including full disclosure of the factual basis of those 

grounds. A bare allegation that a constitutional right has been violated and 

mere conclusions of law shall not be sufficient to warrant any further 

proceedings. Failure to state a factual basis for the grounds alleged shall 

result in immediate dismissal of the petition. If, however, the petition was 

filed pro se, the judge may enter an order stating that the petitioner must 

file an amended petition that complies with this section within fifteen (15) 

days or the petition will be dismissed.3

Tenn. Code Ann. § 40-30-106(d) (emphasis added). 

The Petitioner has failed to present a factual basis for the ground that he was 

coerced into waiving his right to post-conviction relief. The Petitioner executed the 

waiver of rights, which stated that he “explicitly understands, knowingly, freely, and 

voluntarily waives, and hereby swears before the Court under oath, that any and all 

further actions on this matter, or any other appellate or post[-]conviction proceedings that 

may have followed from this conviction, have been permanently foreclosed with this 

[w]aiver.” The factual allegations made by the Petitioner fail to support his claim that he 

was coerced into waiving his right to post-conviction relief. The post-conviction court 

properly dismissed claim (4) without hearing. 

 

3

The Petitioner stated in his petition for post-conviction relief that he was not represented by 

counsel and that he did not “wish to have an attorney appointed[.]” The Petitioner has not claimed that 

the post-conviction court erred in failing to appoint counsel.
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The evidence in the record supports the post-conviction court’s finding that the 

Petitioner knowingly and voluntarily waived his right to post-conviction relief. Having 

determined that the Petitioner knowingly and voluntarily waived his right to postconviction relief, we also determine that the post-conviction court did not err in 

summarily dismissing claims (1), (2) and (3), which allege errors related to the 

Petitioner’s jury trial.

Conclusion

Based on our supreme court’s reasoning in Serrano, 133 S.W.3d at 604, we hold 

that the Petitioner knowingly and voluntarily waived his right to petition for postconviction relief. For the aforementioned reasons, the judgment of the post-conviction 

court dismissing the petition for post-conviction relief without a hearing is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE