                                                                                              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
                      ___________________________________

                             No. E2016-01855-CCA-R3-PC
                        ___________________________________

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.

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
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.

                                          -2-
             ...

             [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
                                             -3-
        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-CCA-
R3-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.”
                                                   -4-
      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).
                                                    -5-
                 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 post-
conviction 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.




                                            -6-
                      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 post-
       conviction 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,
                                            -7-
       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
                                            -8-
        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.
                                                  -9-
       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 post-
conviction 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 post-
conviction relief. For the aforementioned reasons, the judgment of the post-conviction
court dismissing the petition for post-conviction relief without a hearing is affirmed.



                                                 _________________________________
                                                 ROBERT L. HOLLOWAY, JR., JUDGE




                                        - 10 -
