John H. Brichetto, Jr. v. State of Tennessee
E2016-01855-CCA-R3-CD
Tenn. Crim. App.Jul 18, 2017Background
- John H. Brichetto, Jr. and his wife were convicted by jury of Class B felony theft; Petitioner received a 10-year sentence as a Range I offender.
- After sentencing and before his wife’s sentencing, the parties negotiated a global agreement: wife’s conviction would be set aside and she would enter a conditional plea with diversion; Petitioner would waive appeal and all collateral/post-conviction remedies and accept the existing sentence.
- Petitioner executed a written waiver of appeals and post-conviction relief; the trial court questioned him on the record and found the waiver knowing, voluntary, and provident.
- Petitioner timely filed a pro se post-conviction petition alleging ineffective assistance of counsel, prosecutorial misconduct, denial of self-representation, and that the waiver was coerced; the trial court summarily dismissed the petition as barred by the waiver.
- On appeal, the Court of Criminal Appeals considered whether statutory post-conviction rights can be waived and whether Petitioner’s waiver was knowing and voluntary; it affirmed the summary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant can waive the statutory right to seek post-conviction relief | Brichetto argued the waiver was invalid due to duress and procedural illegality (package deal after verdict; coercion by threat to incarcerate wife) | State argued a defendant may waive the statutory right and this waiver was knowing and voluntary | Court: A defendant may waive post-conviction relief; Petitioner’s waiver was knowing and voluntary and barred his claims |
| Whether the specific waiver here was knowing and voluntary | Petitioner claimed emotional duress and coercion (family pressure) vitiated voluntariness | State pointed to written waiver, on-the-record colloquy, and trial court’s express findings of voluntariness | Court: On-record questioning and signed waiver supported voluntariness; Petitioner failed to state factual basis for duress claim |
| Whether claims attacking the underlying trial (ineffective assistance, prosecutorial misconduct, right to self-represent) survived despite waiver | Petitioner asserted those trial-related claims as post-conviction grounds | State argued those claims were encompassed by the clear waiver of all appellate and collateral remedies | Court: Those claims were barred by the valid waiver and properly dismissed without a hearing |
| Whether the post-conviction court erred by summarily dismissing without an evidentiary hearing | Petitioner sought appointment of counsel and an evidentiary hearing on waiver validity | State maintained petition failed to allege facts sufficient under Tenn. Code Ann. § 40-30-106(d) to require a hearing | Court: Petitioner’s bare allegations lacked factual detail; dismissal without hearing was proper |
Key Cases Cited
- Serrano v. State, 133 S.W.3d 599 (Tenn. 2004) (recognizes a defendant may waive post-conviction review if waiver is knowing and voluntary)
- Burford v. State, 845 S.W.2d 204 (Tenn. 1992) (no constitutional duty to provide post-conviction procedures)
- Schick v. United States, 195 U.S. 65 (U.S. 1904) (an accused may waive non-mandated privileges)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (guilty-plea waivers of constitutional rights must be voluntary and knowing)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (relevant to sentencing and constitutional arguments raised by Petitioner)
- Lovin v. State, 286 S.W.3d 275 (Tenn. 2009) (waiver of right to appointed counsel must be knowing and intelligent)
- Pike v. State, 164 S.W.3d 257 (Tenn. 2005) (recognition that post-conviction rights can be waived)
- Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (right to testify must be personally and knowingly waived)