IN THE CRIMINAL COURT FOR MORGAN COUNTY, TENNESSEE
STATE OF TENNESSEE
vs.
Docket No.
JOHN H. BRICHETTO, JR.,
Summers, Sr. J
by designation
2011-CR-41 A, B
and
LISA HORN BRICHETTO,
Defendants.
STATE’S SENTENCING MEMORANDUM FOR
DEFENDANT JOHN H. BRICHETTO, JR. AND DEFENDANT LISA HORN BRICHETTO
Comes now the State of Tennessee, by and through the District Attorney General’s Office for the
Ninth Judicial District, and submits the following sentencing memorandum for the Court’s consideration
in deciding an appropriate sentence in the above-styled case.
On July 8, 2015, after less than three hours deliberation, Defendant John H. Brichetto, Jr.
(hereafter referred to as “Defendant Brichetto”) and Defendant Lisa Horn Brichetto (hereafter referred to
as “Defendant Horn Brichetto”) were each found guilty by a Morgan County Jury for One Count of Theft
of Property Over Sixty Thousand Dollars ($60,000), a B Class Felony, in violation of Tenn. Code Ann. §
39-14-103.1 The punishment for this offense is eight (8) to thirty (30) years imprisonment with the
Tennessee Department of Corrections, up to a Twenty Five Thousand Dollar ($25,000) fine, lawful
restitution, and any other reasonable and appropriate conditions set by the Court. 2
Tennessee Criminal Sentencing Reform Act of 1989, Part I
The Tennessee Legislature has written “the foremost purpose of [the Tennessee Criminal Sentencing
Reform Act] is to promote justice.” Tenn. Code Ann. §40-35-102. Through the guidelines set forth in the
Act, “every defendant shall be punished by the imposition of a sentence justly deserved in relation to the
seriousness of the offense.” Id. Courts are guided “to assure fair and consistent treatment of all
1 The offense of which the Defendants were convicted is the same offense to which the Defendants were
indicted in May of 2011.
2 These may include unpaid Community Service Hours, Rehabilitation and Education Programs, Alcohol
and Drug Assessments, Counseling, etc.
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defendants by eliminating unjustified disparity in sentencing and providing a fair sense of predictability
of the criminal law and its sanctions.” Id.
“Punishment shall be imposed to prevent crime and promote respect for the law by: (A) Providing
an effective general deterrent to those likely to violate the criminal laws of this state; (B) Restraining
defendants with a lengthy history of criminal conduct; (C) Encouraging effective rehabilitation to those
defendants, where reasonably feasible, by promoting the use of alternative sentencing and correctional
programs that elicit voluntary cooperation of defendants; and (D) Encouraging restitution to victims
where appropriate.” Tenn. Code Ann. §40-35-102(3).
Defendants with little to no criminal history, who are convicted of a Class C or lesser felony, are
presumptively candidates for alternative sentencing, but the presumption may be overcome by “evidence
to the contrary.” See Tenn. Code Ann. §40-35-102(5,6), §40-35-103(1)(B). Conversely however,
defendants convicted of a Class B or higher felony, are not presumptively qualified for probation and/or
alternative sentencing. Id. Nevertheless, “in recognition that state prison capacities and the funds to build
and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society and evincing failure of past efforts
at rehabilitation shall be given first priority regarding sentencing involving incarceration.” Tenn. Code
Ann. §40-35-102(5).
For those criminal defendants who receive such priority, the “sentences . . . should be based on
the following considerations: (A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective deterrence to
others likely to commit similar offenses; or (C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann. §40-35103(emphasis added). Moreover, “the potential or lack of potential for the rehabilitation or treatment of
the defendant(s) should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. §40-35-103(5)(emphasis added). Still, other considerations may include a
defendant’s work history, a defendant’s false testimony, lack of candor, and/or acknowledgment of
culpability. Tenn. Code Ann. §40-35-103(5), §40-35-103(5) (“A defendant’s work history is relevant to
his or her potential for rehabilitation, which is a factor to be considered in determining the length of the
sentence.” State v. Kelley, 34 S.W.3d 471 (Tenn. 2000), appeal denied; “Consideration of defendant’s
false testimony in sentencing process is within sentencing court’s traditional discretion regarding
evaluation of defendant’s personality and prospects for rehabilitation for purposes of determining
appropriate sentence.” State v. Dowdy, 894 S.W.2d 301 (Tenn. 1994); “Lack of candor may militate
against a grant of probation.” State v. Kendrick, 10 S.W.3d 650 (Tenn. 1999); “In determining whether to
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grant defendant alternative sentencing, trial court may consider a defendant’s truthfulness and lack of
candor as they relate to the potential for rehabilitation. State v. Sharp, 327 S.W.3d 704 (Tenn. 2010),
2014 WL 3744620, rehearing denied, appeal after new trial, appeal denied; “Evidence that defendant
acknowledged little culpability for his actions supported finding that sentence of confinement, rather than
alternative sentencing option, was necessary to avoid depreciating seriousness of crime . . . though [the]
defendant had no prior criminal record and had good social history.” Tenn. Code Ann. §39-13-211(a),
§40-35-103(1)(B). State v. Gutierrez, 5 S.W.3d 641 (Tenn. 1999)).
Within the context of the prior guidelines for sentencing, “ the court shall consider . . . the
following advisory factors in determining whether to enhance a defendant’s sentence: (1) the defendant
has a previous history of criminal convictions or criminal behavior, in addition to those necessary to
establish the proper range; (2) the defendant was a leader in the commission of an offense involving
two or more criminal actors; (3) the offense involved more than one victim; . . . and (4) the 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.” Tenn. Code Ann. §40-35-114(1-3, 14). The
Court may also, “if appropriate for the offense,” consider the mitigating factor that “the defendants’
criminal conduct neither caused nor threatened serious bodily injury,” Tenn. Code Ann. §40-35-113(1),
even though such a factor does not mitigate against the “maximum sentence in range . . . for theft of
property.” State v. Anderson, 985 S.W.2d 9 (Tenn. 1997), 2001 WL 1491320, appeal dismissed, appeal
denied, denial of post-conviction relief affirmed; See also Tenn. Code Ann. §40-35-113 (1,13); Contra
State v. Grissom, 956 S.W.2d 514 (Tenn. 1997)(“Mitigating factors warranted imposition of minimum
sentence of three years for crime of theft of property in excess of $10,000; factors included defendant’s
remorse, responsibility, and willingness to aid victim in any way that she could, time defendant had
already spent with employees of victim corporation in attempt to diminish harmful effects of her
misconduct, community service hours spent in public school system, fact that defendant’s conduct did not
cause or threaten serious bodily injury, and defendant’s serious family obligations as mother of very
young children.”).
Tennessee Criminal Sentencing Reform Act of 1989, Part II
Tennessee Code Annotated gives further guidance on “the manner in which the trial judge is to
determine the appropriate sentence [as well as] the manner in which that sentence is to be satisfied.”
Tenn. Code Ann. § 40-35-210, Comments of the Tennessee Sentencing Commission (“Cmts. Tenn. Sent
Comm’n”). “To determine the specific sentence and the appropriate combination of sentencing
alternatives that shall be imposed on the defendant, the court shall consider the following: (1) the
evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles
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of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct involved; (5) evidence and information offered by the parties on the mitigating and
enhancement factors; (6) Any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; and (7) Any statement the defendant wishes to
make in the defendant’s own behalf about sentencing.” Tenn. Code Ann. §40-35-210(b).
At that time, “the court shall impose a sentence within the range of punishment, determined by
whether the defendant is a mitigated, standard, persistent, career or repeat violent offender. In imposing a
specific sentence within the range of punishment, the court shall consider, but is not bound by, the
following advisory sentencing guidelines: (1) the minimum sentence within the range of punishment is
the sentence that should be imposed, because the general assembly set the minimum length of sentence
for each felony class to reflect the relative seriousness of each criminal offense in the felony
classifications; and (2) the sentence length within the range should be adjusted, as appropriate, by the
presence or absence of mitigating and enhancement factors.” Id.
In any event, “the court must begin the sentencing determination at the statutory minimum which
is called the ‘presumptive sentence.’” Tenn. Code Ann. §40-35-210, Cmts. Tenn. Sent Comm’n. Then, “if
the court finds enhancing factors but no mitigating factors, the court may set the sentence above the
minimum but still within the appropriate range.” Id. This “requires a weighing process based on the
merits of the various enhancement and mitigating factors.” Id. However, “the sentencing commission
specifically did not designate any particular numeric value for the enhancement and mitigating factors” to
allow for the “judicial discretion necessary to make individualized sentencing determinations.” Id. In
turn, this “permits the court the greatest latitude in considering all available information in imposing the
appropriate sentence.” Id. “Implicit within [the Code], however, is that the judge may not consider
matters other than those factors presented in open court [and on the Record].” Id. Naturally, it follows
that “when the court imposes a sentence, it shall place on the record, either orally or in writing, what
enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.” Tenn. Code Ann. §40-35-210(e).
The Facts and Figures of the Brichetto Case3
The Feedstock Loan Program in general - and the Two Hundred and Fifty Thousand Dollars
($250,000) delegated for use in the Defendants’ alleged soybean processing facility specifically - were
intended by the State and the Department of Agriculture to jump start the soybean industry in Tennessee.
In an attempt to make Tennessee the forefront of biodiesel production and alternative energy solutions,
3 For additional facts regarding this case, please see the State’s Memorandum of Law, attached hereto as
Exhibit and incorporated into this Memorandum by reference.
4
the program and the soybean processing facility were to bring much needed industry, economic
development, and infrastructure to Morgan County, a rural area with approximately 20.8% of persons
below the poverty level and roughly an 11.8% unemployment rate, 4 while also pioneering and developing
environmentally friendly and more sustainable alternatives to fossil fuels and oil. However, the taking of
the public monies by the Defendants has given Morgan County a political and social black eye, drained
resources for other public interest and development projects, and cost the County and the State untold
amounts of money for the business considerations, real property, utilities and other grants afforded the
Defendants separate to the loan monies involved in this case and prior to the arduous and unnecessarily
protracted and litigious prosecution of Defendant John H. Brichetto, Jr. and Defendant Lisa Horn
Brichetto.
Pursuant to statute, the presumptive/minimum sentence for each Defendant convicted of a B Class Felony
Theft is eight (8) years in prison and a fine of up to Twenty Five Thousand Dollars ($25,000.00). As a
Range I/Standard Offender having up to one prior felony conviction, the mandatory service amount
required before a Release Eligibility Date (“RED”) is thirty percent (30%) or approximately two point
four (2.4) years. However, Standard Sentencing for a Range I/Standard Offender extends up to twelve
(12) years with an RED of three point six (3.6) years, dependent upon the finding of aggravating factors
and the absence of mitigating factors. If appropriate, the Court may also require the offender, in addition
to incarceration, pay full restitution for the stolen property and complete unpaid Community Service
Hours, an Alcohol & Drug Assessment, Rehabilitation and/or Education Program, Mandatory Counseling,
etc.
For the reasons set for below and specified within the context and language of the statutory
guidelines, the State respectfully submits that both Defendants should be remanded immediately to the
custody of the Tennessee Department of Corrections for service of ten (10) years as a Range I/ Standard
Offender by Defendant John H. Brichetto, Jr. and the service of eight (8) years as a Range I/Standard
Offender by Defendant Lisa Horn Brichetto. Further, it is the State’s request that the Defendants be
jointly and severally liable for the repayment of court costs as well as One Hundred Forty Two Thousand
Two Hundred Fourteen Dollars and Fifteen Cents ($142,214.15) restitution, the full total of monies stolen
by the Defendants and used to bankroll a personal lifestyle that included a LandRover vehicle, “Corporate
Residence,” Spa/Salon visits, travel, clothes, and thousands of dollars of alcohol. The State will not
request reimbursement of nearly Ten Thousand Dollars ($10,000.00) of expenses necessary to transport
witnesses from two different coasts to testify at the trial, but would like for the Court to take note of the
additional costs of this prosecution when sentencing.
4 Figures from the Southern Rural Development Center as of 2009.
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PROTECT SOCIETY FROM DEFENDANTS WITH A LONG HISTORY OF CRIMINAL CONDUCT,
TENN CODE ANN. §40-35-103(1)(A)
Under this sentencing consideration, the Court may use and apply any “previously engaged
criminal conduct of the same type as the offense in question, irrespective of whether such conduct
resulted in previous arrests or convictions.” State v. Bottoms, 87 S.W.3d 95 (Tenn. 2001). Here, both
Defendants have substantial prior criminal conduct.
On or about February 9, 2015, the State filed a Notice of Enhancement and Impeachment for
Defendant John H Brichetto, Jr. and a Notice of Impeachment for Defendant Lisa Horn Brichetto. Both
Defendants were researched to have had prior Criminal Convictions. Defendant John H. Brichetto, Jr.
was convicted of Felony Theft in Arapahoe County, Colorado, on or about July 15, 1998, and Defendant
Lisa Horn Brichetto was said to have been convicted of Unlawful Manufacturing of a Controlled
Substance in Fulton County, Georgia, on or about December 19, 1990. However, the State has learned the
charge against Defendant Lisa Horn Brichetto is an unresolved matter currently placed on the inactive
docket. The State has also learned the same charge was issued for Defendant John H. Brichetto, Jr., but
failed to appear on Defendant Brichetto’s criminal history because of the use of a different spelling of the
Defendant’s last name and/or the use of a false Social Security Number.
As seen through these Criminal Court matters, both Defendants have extensive dealings in the
justice/legal system that parallel the offense(s) in this case and are demonstrative of “previously engaged
criminal conduct” even if none have, thus far, resulted in criminal convictions. That conduct, as
previously petitioned to the Court in the State’s Reply to Defendants’ Opposition to State’s Motion to
Introduce 404(b) Evidence, filed on or about June 19, 2015, is as follows:
State of Colorado v. John Brichetto, Arapahoe Co. District Court Case No. 97CR2970.
Defendants entered into various contracts for improvements or construction with several entities that
incurred monetary obligations as a result of said contracts. The Defendants, however, had no intention of
paying. One of the entities with whom the Defendants contracted required the Defendants to execute a
Deed of Trust to secure the payment of approximately Forty Five Thousand Dollars ($45,000.00). The
Deed of Trust became a registered lien against the property. Defendant Brichetto caused the signature of a
supposedly authorized individual to appear on a fraudulent release of this lien and caused same to be
recorded, allowing the title to said property to incorrectly show that the property was of free of that lien.
Defendant Brichetto was subsequently charged with various offenses including forgery, theft, and
recording a false instrument. He pleaded guilty to a felony offense of theft and received a sentence of four
(4) years with all time suspended to probation upon the payment of Forty Five Thousand Dollars
($45,000.00) in restitution. Be that as it may, Defendant Brichetto failed to make restitution payments and
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was arrested on a fugitive from justice warrant in Knoxville, Tennessee, years later. To avoid serving the
remainder of the sentence with the Colorado Department of Corrections, Defendant Brichetto was forced
to pay the restitution.
Several other judgments were entered in the public record in Arapahoe County, Colorado, against
Defendant Brichetto, relative to home improvements, but many of these remain unpaid. It is of note that
although Defendant Horn Brichetto was not named in the criminal case, Defendant Horn Brichetto
benefited and profited from the overt actions that were accomplished by Defendant Brichetto.
SunTrust Mortgage, Inc. v. Lisa C. Horn and John H Brichetto, Fulton County Superior
Court Case No. 2004CV80797. While residing in Georgia, the Defendants entered into a contract with
SunTrust Mortgage, Inc. to finance the purchase of a home or other real property in Fulton County.
Around November 23, 2002, the Defendants became aware that SunTrust had mistakenly cancelled the
lien created by a Deed of Trust prepared and filed by that SunTrust to secure the mortgage indebtedness.
The Defendants then employed a corporation under their control known as “NWC, Inc.” to create a false
lien against the property and to protect the value from any effort by SunTrust to regain a security interest
as a first mortgagor. NWC, Inc. was a Wyoming Corporation in which both Defendants were corporate
officers, making it strikingly similar to the case at bar with Northington Energy. The Defendants claimed
they were indebted to NWC, Inc. in the amount of Three Hundred and Fifty Thousand Dollars
($350,000.00) with the intent to deceive prospective bona fide purchasers for value of the property in
question.
When the property was sold, Defendant Brichetto attended the closing and produced an executed
release of the purported lien held by NWC, Inc. Said release, of course, was executed by Defendant
Brichetto on behalf of NWC, Inc.
Defendant Brichetto then signed an affidavit to swear of no outstanding liens or claims relative to
the property, even though Defendant Brichetto and Defendant Horn Brichetto were aware that SunTrust
had never been paid. As a result, the Defendants pocketed over Two Hundred and Fifty Thousand Dollars
($250,000.00) to which they were not entitled. Consequently, in 2005, SunTrust sued and obtained a
judgment against both Defendants in the amount of One Hundred Ninety Five Thousand Two Hundred
and Eighty Dollars and Ninety Six Cents ($195,280.96). SunTrust has since attempted to domesticate and
collect this judgment in the states of Tennessee and Wyoming without success. The debt remains unpaid.
William & Linda Nix v. John Brichetto, Knox Co Warrant No. 69896DT. This case
involved a Detainer Warrant filed by the Plaintiffs against the Defendants for a home rented by the
Defendants at 9005 Hunter Vallet Lane, Knoxville, Tennessee.
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Faulkner Properties v. John Brichetto/Boost Lubrications, LLC, Knox Co. General
Sessions Docket No. 77316G. This matter was filed on June 15, 2010, to collect damages for breach of
contract. Defendant John H. Brichetto, Jr. avoided service.
Jason Stroud v. John H. Brichetto, Knox Co. General Sessions Docket No. 13748H. This
is another breach of contract/quantum meriut case. Again, Defendant John H. Brichetto, Jr. avoided
service.
Heritage Lake v. Northington Energy, Lisa Horn-Brichetto, Knox Co. General Sessions
Docket No. 70406 DT. The Plaintiff filed a Detainer Warrant against Northington Energy and Defendant
Horn Brichetto pertaining to property located at 9800 Lakeland View Way, Apt. 201, Knoxville,
Tennessee.
Alley Auction, Inc. v. Northington Energy, LLC and All Occupants, Knox Co. General
Sessions Docket No. 60448 DT. This is a Detainer Action in which the Plaintiff obtained a default
judgment against Northington Energy, the Defendants’ company at the center of this theft case.
Mariner Finance v. John Brichetto/Northington Group, Inc., Knox Co. Docket No.
26134H. Mariner Finance filed suit against Northington Group and Defendant John Brichetto for breach
of contract and non-payment. As with other cases, Defendant John Brichetto successfully avoided
process.
Siri Datar Singh Khalsa v. John Brichetto & Lisa Horn, Knox Co. General Sessions
Docket No. 66636DT. Judgment in the amount of Five Thousand and Fifteen Dollars ($5,015.00) was
obtained by the Plaintiff against the Defendants in a Detainer Action concerning Loft No. 203 at 1060
World’s Fair Park Drive, Knoxville, Tennessee.
Siri Khalsa and Gururas Khalsa v. Indiestar Media Entertainment, Inc., Knox Co.
General Sessions Docket No. 61619DT. This was a second Detainer Action involving the Loft at 1060
World’s Fair Park.
Club LeConte v. John H. Brichetto, Knox Co. General Sessions Docket No. 44776G.
Defendant Brichetto successfully avoided process in this breach of contract/failure to pay matter.
Affiliated Roofing v. John Brichetto, Knox Co. General Sessions Docket No. 2796H.
Affiliated Roofing sued Defendant John Brichetto for failure to pay for roofing repairs. Defendant
Brichetto successfully avoided process.
John Brichetto v. Tip Top Roofing & Spencer Rutenbar, Knox Co. General Sessions
Docket No. 2796H. Defendant Brichetto sued Tip Top Roofing and others for breach of contract and
failure to pay commissions.
Indiestar Media & Entertainment v. Allen Greg Thomas, Knox Co. General Sessions
Docket No. 4880H. The Defendants sued Thomas on behalf of Indiestar Media for breach of contract.
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John Brichetto/Northington Energy v. George Armour Ewart, Knox Co. General Sessions
Docket No. 8127H. Defendant John H. Brichetto, Jr. sued George Ewart for breach of contract on March
16, 2012. Ewart had designed a building for Brichetto for use as the manufacturing center for the
Brichettos’ “biodiesel” project. The plans prepared by Ewart were never used and never paid for.
Defendant Brichetto filed suit after learning that Ewart may be a witness against the Brichettos in this
case. This suit was subsequently followed by one in which Defendant Brichetto placed a fabricated claim
against Ewart in the hands of a collection agency in Wyoming. Likely, this was all done in an effort to
coerce Ewart and influence Ewart’s testimony.
Northington Energy v. John Brichetto, Knox Co. General Sessions Docket No. 12903H.
On June 20, 2012, Northington Energy/Defendant John H. Brichetto, Jr. sued Ewart for breach of
contract. This case was dismissed with prejudice on July 10, 2012, upon a finding that Defendant John H.
Brichetto, Jr. was abusing process.
John H. Brichetto v. Scott Smith-Green River Holdings, Knox Co. General Sessions
Docket No. 16396H. Defendant Brichetto sued Scott Smith and others for the return of equipment – the
same equipment Brichetto alleges was stolen from Northington Energy’s soybean processing facility.
After the Defendants had stolen and returned the equipment with the intervention of law enforcement,
Smith auctioned the equipment (five or six pieces in all) to recover at least part of the monies owed by the
Brichettos. The equipment netted approximately Five Thousand Dollars ($5,000.00) at auction out of
what Defendant Brichetto claimed was over One Hundred Thousand Dollars ($100,000.00) of equipment.
The lawsuit was filed by the Brichettos against Smith in retaliation and in an effort to coerce Smith’s
testimony in this case.
Green River Holdings v. Northington Energy, LLC, Knox Co. Chancery Court Case No.
172093-3. This was a Chancery Court Case wherein Green River Holdings sued Northington Energy for
non-payment of rent on a building located at 405 Montbrook Lane, Knoxville, Tennessee. The Plaintiff
received no money that was owed by Northington Energy and the Defendants.
John Brichetto v. John Stone, Knox Co. General Sessions Docket No. 3269H. Defendant
Brichetto sued John Stone on December 3, 2011, alleging an action to recover a car worth Fifty Two
Thousand Dollars ($52,000.00). This suit was filed at a time when Defendant Brichetto sought counsel as
an indigent Defendant in this court. Notwithstanding, Defendant Brichetto did not disclose this, or any
other assets to the Court in the Indigency Affidavit.
John Brichetto v. Steve Cox, Knox Co. General Session Docket No. 8128H. Defendant
Brichetto sued Cox in an attempt to recover personal property. This case was dismissed.
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John Brichetto/Zenalgae, LLC v. Steve Cox, Knox Co. General Sessions Docket No.
6392H. Defendant Brichetto sued Stone on behalf of Zenalgae, LLC to recover personal property. The
case was dismissed, later amended (6392H (AMENDED), and dismissed for a second time.
John Brichetto/Indiestar Media & Entertainment v. Eric Stuart, Knox Co. General
Sessions Docket No. 3951H. Defendant Brichetto sued on behalf of Indiestar Media for breach of
contract. This case was dismissed.
John H. Brichetto v. Siri Datar Khalsa, Knox Co. General Sessions Docket No. 21553H.
Defendant Brichetto filed suit against Khalsa for breach of contract in retaliation for a suit filed earlier
against Defendant Brichetto by Khalsa. This case was dismissed.
John H. Brichetto – Northington Energy v. David Harris-Citizens First Bank, Knox Co.
General Sessions Docket No. 8873H. Defendant Brichetto filed this suit for recovery of personal
property. The case was dismissed on August 22, 2012. Of note, David Harris was a potential witness
against the Defendants in this case, and it is believed this suit was used for intimidation.
As the Court may see from this voluminous amount of conduct, the Defendants have used the
American Court system to continually obfuscate, bully, intimidate, and steal. Consequently, the
sentencing for the Defendants must be that of confinement over probation.
AVOID DEPRECIATION OF SERIOUSNESS OF OFFENSE OR PROVIDE AN EFFECTIVE
DETERRENCE, TENN. CODE ANN. §40-35-103(1)(B)
“Seriousness of crime may justify some disparity in sentences that would be related to purpose of
Sentencing Reform Act, such as general deterrence, restraint of recidivists, and likelihood of
rehabilitation for individual offender before sentencing court.” State v. Moss, 727 S.W.2d 229 (Tenn.
1986). The seriousness of an offense may also be a proper basis for denying alternative sentencing when
the defendant is not presumptively eligible for probation. Contra, State v. Bottoms, 87 S.W.3d 95 (Tenn.
2001). Nevertheless, the Court may “properly rely upon deterrence in denying alternative sentencing to
defendant convicted of embezzlement and theft of property.” State v. Millsaps, 920 S.W. 2d 267 (Tenn.
1995).
Tennessee and Morgan County have a compelling interest in deterrence and justice in this case.
Preventing recidivism and future acts such as those committed by the Defendants (i.e. the theft of State
monies) are of particular importance, especially given the Defendants’ history of manipulating and
perverting the justice system to achieve their personal goals, as well as stealing public monies allocated
for economic and community development to fund their personal lifestyle and pay their personal debts.
Whereas this case is admittedly void of physical violence to others, the theft of over One Hundred and
Forty Thousand Dollars ($140,000) of money allocated for a public welfare project, is a serious offense,
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both from the standpoint of the felony classification and from the perspective of social justice/harm.
Probation or alternative sentencing for a B Felony in general is not an effective deterrence for any future
conduct, either on the part of the Defendants, as viewed through their past legal and criminal conduct, or
for others, who may employ the same or similar conduct in the future.
Even so, the seriousness of this offense does not lie solely within the amount of money taken or
the method in which the money was obtained. The seriousness of this crime lies squarely with the
violation of public trust, the fact the monies were allocated for economic and community development,
and the overall demeanor, behavior, and conduct of the Defendants combined with the facts of the theft.
When the details of the Defendants’ scheme are viewed in conjunction with the legion of legal actions
created by, resulting from, or involving the Defendants, the issue of when “enough becomes enough”
must be confronted. Veritably, that time is now.
Throughout the entirety of this case, the Defendants have employed what this Court has referred
to as “professional violence” by the continuous, unfounded complaints to the Board of Professional
Responsibility against “hard working, honest and diligent” attorneys that “have resulted in violence to the
reputation of the attorney[s] involved.”5 Leading up to the Order setting such forth and in his explanation
for the purpose and reasoning of the complaints, Defendant Brichetto testified that “the only way these
people [i.e.lawyers]” have their “feet [held] to the fire is the Board of Professional Responsibility
(“BPR”).”6 As Defendant Brichetto continued with his “diatribe”7 from the witness stand, he said “I don’t
know if the Board is going to do anything or if . . . the Court will do anything. One way or the other, I
want . . . something to happen.”8 “The only way you can keep these people in line is file the Board a
complaint because I have a legitimate complaint.” 9 This court, however, found otherwise.
5 State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court Case No. 2011-CR-41 A,
Order, dated and filed May 23, 2015.
6 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.20.
7 State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court Case No. 2011-CR-41 A,
Order, dated and filed May 23, 2015.
8 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.21.
9 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.20-1.
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Upon further questioning under cross examination, Defendant Brichetto admitted that he had filed
“probably four or five”10 BPR complaints during the pendency of the case as well as sending up to three
letters to judges in the case.11 At least three different attorneys represented Defendant Brichetto on an
appointed basis.12 The same is true for Defendant Horn Brichetto. 13 All of the attorneys representing
these Defendants either withdrew due to a conflict or a complaint being filed with the BPR by the
Brichettos.14 Two letters were sent to Judge Eugene Eblen: one by Defendant Brichetto and one by
Defendant Horn Brichetto,15 and one letter was sent to this Court by Defendant Horn Brichetto. 16
Despite all, the Court found the Defendants’ actions were “calculated to manipulate continuances; to deter
the judicial process; to obfuscate issues; to inflict violence on the reputation of [attorneys]; to delay the
administration of justice; and to maliciously impugn the integrity of [counsel].” Accordingly, the Court
found Defendant Brichetto forfeited his right to counsel. 17
Defendant Horn Brichetto has also received the attention of the Court at prior proceedings.
During the same May hearing, the Court found it necessary to address Defendant Horn Brichetto’s
10 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.26.
11 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.28.
12 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.12. Of note, Defendant Brichetto
also represented himself Pro Se at one point.
13 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.14.
14 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.12-15.
15 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.13-14.
16 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.14-15.
17 State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court Case No. 2011-CR-41 A,
Order, dated and filed May 23, 2015.
12
behavior by stating “I would appreciate you acting . . . as a mature individual.” 18 When Defendant Horn
Brichetto responded with “I’ll try harder,”19 the Court answered with “Don’t try harder; just do it.” 20
These very same mannerisms and acts permeated the hearings and proceedings of the case and exhibited
Defendant Horn Brichetto’s lack of respect for and utter contempt of this Court’s authority and
jurisdiction.
Together, both Defendants - in word and deed - have manufactured and presented a charade before the
Court to distract, confuse, and mask their guilt. This charade has mocked the justice system, generated
immeasurable grief, anxiety and fear for many individuals unfortunate enough to be involved in with this
case, depreciated the seriousness of crime committed by the Defendants, and overshadowed the
irreversible harm done to countless Tennesseans and Morgan County residents. As the Court
appropriately stated on the Record, “bottom line,” is that all “have had enough.” 21
The theft of public monies is not anything new to society or even to the State of Tennessee, but the theft
of monies combined with the unrelenting assault and barrage of the Defendants’ shenanigans, harassment,
and criminal conduct are an entirely different matter. Viewed and weighed in the light of the statutory
guidelines for sentencing, the seriousness of this offense and deterrence necessary to prevent similar
crimes in the future, warrant nothing less than a sentence of incarceration for Defendant Brichetto and
Defendant Horn Brichetto.
MEASURES LESS RESTRICTIVE HAVE BEEN APPLIED UNSUCCESSFULLY TO THE DEFENDANTS,
TENN. CODE ANN. §40-35-103(1)(C).
With all candor, and in all fairness to the Brichettos, it should be noted that neither Defendant has
served any significant amount of time in jail, on probation, or, to the State’s knowledge, been arrested
more than a few times. To the contrary, and relevant to the question of confinement versus probation, the
18 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.58.
19 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.58.
20 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.58.
21 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.72.
13
overall history, temperament, and behavior of the Brichettos make sentencing much more complicated
than what is seen at first blush.
Prior to moving to Tennessee, the Defendants earned arrests in at least two different States:
Colorado and Georgia. Defendant Brichetto has a prior felony conviction in which he served an
alternative sentence of probation with the payment of a large, six figure amount of restitution.
Nevertheless, Defendant Brichetto failed to pay the full amount Ordered by the courts and became the
subject of a Fugitive Arrest Warrant.
Defendant Brichetto later fulfilled all his obligations with the State of Colorado, but only after his
arrest in Tennessee, and, seemingly, to avoid any enhancements on a latter criminal conviction. It is
questionable and unknown whether or not Defendant Brichetto would have paid the full amount of
monies owing in Colorado, had he not been indicted and arrested in Morgan County, Tennessee.
Moreover, Defendant Brichetto and Defendant Horn Brichetto have been arrested in Georgia for
felony drug activity, but have never faced any recorded retribution or prosecution for said behavior.
What’s more, it appears neither Defendant has permanently disposed of the outstanding matters either
through dismissal, prosecution or expungement.
In furtherance of a common scheme and plan, Defendant Brichetto has used a false/fake Social
Security Number and a misspelling of his last name to avoid process and possibly avoid other
prosecutions. Defendant Lisa Horn Brichetto has also used different names/aliases throughout different
States, with no other reason but to distance and/or insult herself from the actions of husband, Defendant
Brichetto, or cause additional deception and confusion with respect to her identity. These are not the
types of acts that should garner less restrictive measures for punishment and sentencing; these are simply
more of the actions by the Defendants that demonstrate alternative sentencing is not appropriate.
POTENTIAL OR LACK OF POTENTIAL FOR REHABILITATION,
TENN. CODE ANN. §40-35-103(5)
Simply stated, there is no potential for rehabilitation with these Defendants. As a “felon’s
rehabilitation potential and risk of repeating criminal conduct are fundamental in determining whether he
or she is suited for alternative sentencing,” State v. Keen, 996 S.W.2d 842 (Tenn. 1999), appeal denied,
there can only be retribution in this case.
Since 2008, when this crime was first committed, and over the last seven years it has been
prosecuted, the Defendants have shown no respect for the laws of this State or the authority of this Court.
Without accepting or acknowledging guilt in this crime, there cannot be effective reformation, and
certainly, no meaningful or feasible rehabilitation for Defendant Brichetto or Defendant Horn Brichetto as
14
intended by alternative sentences. Therefore, the only deterrent for either of the Defendants is
confinement.
Rehabilitation is possible where voluntary and cooperative. In this case, neither Defendant
accepts the nature of their actions or the correctness of the verdict. For that reason, as anticipated and
outlined by the purpose and intent of the Tennessee Criminal Sentencing Reform Act, the only way to
prevent future crime and promote respect for the law with Defendant Brichetto and/or Defendant Horn
Brichetto is to impose a sentence of incarceration.
Immediately after the trial and the jury’s finding of the Defendants’ guilt, witnesses reported the
Defendants were photographing license plates and vehicles in the parking lot of the Morgan County
courthouse. Perhaps a move to intimidate, or perhaps an overt step towards some type of retaliation, the
behavior is absolutely unacceptable, yet indicative of the never ending criminal activity carried out by the
Defendants. Such actions are also symbolic of the lack of potential for any type of rehabilitation of either
Defendant Brichetto or Defendant Horn Brichetto. The demeanor and actions of the Defendants
displayed throughout this prosecution are characteristic of the Defendants’ perpetual and engrained
arrogance, unlawful mindset, and lack of respect for any authority or law. They are further confirmation
of the inability of the Defendants to be rehabilitated or to successfully complete an alternative sentence.
THE DEFENDANTS’ WORK HISTORY
“A defendant’s work history is relevant to his or her potential for rehabilitation, which is a factor
to be considered in determining the length of the sentence.” See Tenn. Code Ann. 40-35-103(5). See also
State v. Kelley, 34 S.W.3d 471 (Tenn. 2000), appeal denied. In this case, however, not much is truly
known about the work history of either Defendant and, therefore, work history should not be seen to favor
alternative sentencing.
Defendant Brichetto has testified under oath before this Court more than once. Both times
Defendant Brichetto was cagey and anything but forthcoming about his employment, education, or work
history.22 Defendant Brichetto, either through testimony under oath or recorded statements with the
Tennessee Bureau of Investigation, has called himself an “entrepreneur,” 23 a day laborer,24 and “Owner”
22 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February, 11, 2015, p.43-57, and Transcript of the
Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court
Case No. 2011-CR-41 A, dated May 20, 2015, p.25, 29-32.
15
of Northington Energy.25 None of these titles have been proven or can be verified with any independent
source or evidence especially since the Defendant has refused to disclose his income and/or assets.
Defendant Horn Brichetto has also testified. Equally as cautious as Defendant Brichetto, Defendant Horn
Brichetto admitted only to working part time (roughly 23-30 hours per week) 26 with the future desire to
pursue a career in advertising.27 Defendant Horn Brichetto continued to state that she runs an “Extreme
Truckers” radio show/blog, but claimed no income from this work, only an association with Indiestar
Entertainment.28 Finally, Defendant Horn Brichetto testified that she has won an award for producing
radio talk shows, but couldn’t remember who the award was from. 29
With no direct and substantial work history for either Defendant, it is reasonable and prudent for the
Court to factor this history into the potential for the Defendants’ rehabilitation. Likewise, the Court may
also use the absence of such information to determine the length of sentencing. Here, there is no
substantial history and here, there is no possibility of rehabilitation. Therefore, the Defendants must be
sentenced to incarceration rather than probation.
FALSE TESTIMONY
“In determining whether to grant [a] defendant alternative sentencing, trial court may consider a
defendant’s untruthfulness and lack of candor as they relate to the potential for rehabilitation.” State v.
Sharp, 327 S.W.3d 704 (Tenn. 2010), rehearing denied, appeal after new trial, 2014 WL 3744620, appeal
23 See Transcript of Interview, Tennessee Bureau of Investigation, Trial Exhibits, p.1.
24 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.49.
25 See Trial Exhibits.
26 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.58.
27 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.59.
28 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.58-59.
29 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.59.
16
denied. In this case, there have been untold amounts of false testimony from Defendant Brichetto and
Defendant Horn Brichetto, as illustrated through their pleadings, testimony, attitude, and decorum before
this Court.
On February11, 2015, this Court held a pre-trial Motions Hearing and it was disclosed, after the
State had filed a Motion for Defendant to Execute & Disclose a Uniform Affidavit of Indigency and for
the Court to Conduct an Indigency Hearing, that Defendant Brichetto was, in fact, not indigent. 30
Defendant Brichetto filed his own “redacted” version of an affidavit with the Clerk’s Office under
“Seal.”31 The same thing was done for Defendant Horn Brichetto, even though Defendant Horn
Brichetto’s attorney filed another version of an Affidavit on Horn Brichetto’s behalf. 32
Under oath during the hearing, Defendant Brichetto refused to tell the court his income and refused to be
truthful and open about his assets.33 Then, Defendant Brichetto became combative with the Court and
attempted to invoke his “Fifth Amendment Rights” to avoid disclosing his actual income or his actual
assets.34
Upon further questioning about assets, Defendant Brichetto was again untruthful. Defendant Brichetto
first advised “the bank” owned the Fiat registered to himself in Knox County. 35 Then, Defendant
Brichetto advised that he owned the car but failed to include it on the affidavit of indigency. 36 Moreover,
Defendant Brichetto stated that he didn’t have any records with him and couldn’t answer when he began
making money.37 Defendant Brichetto further stated that he was unsure of his home address because they
30 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.26-28, 33-35,45.
31 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.34-36.
32 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.35-36.
33 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.42-46.
34 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.46-49.
35 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.47, 52.
17
“moved.”38 Finally, Defendant John Brichetto could not “remember” the landlord’s name at a previous
home address in downtown Knoxville even though the Defendants were sued by the owner for back rent
and the Brichettos counter-sued in return.39
Defendant Horn Brichetto testified under oath at that hearing as well and was also untruthful. Defendant
Horn Brichetto testified that she had “no connection with Northington.” 40 When asked a second time
about her involvement with Northington, Defendant Horn Brichetto advised “I answered that . . .I do not
have any involvement with Northington Energy, LLC.”41 Nevertheless, in the filings Defendant Horn
Brichetto drafted, signed and filed in her suit before the Claims Commission, affirmed that she, in fact,
was an employee of Northington Energy. 42
Additionally, when asked about income, Defendant Horn Brichetto answered that she earns Two Hundred
and Eighty Dollars ($280.00) a week.43 This figure did not include benefits from S.N.A.P. program listed
on Defendant Horn Brichetto’s Indigency Affidavit filed by her counsel. 44 Finally, when asked about
assets, Defendant Horn Brichetto denied owning any assets other than “approximately twenty-three
36 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February, 2015, p.48, 52; and Transcript of the
Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court
Case No. 2011-CR-41 A, dated May 20, 2015, p.29-31.
37 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.51.
38 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.53.
39 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.55.
40 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.60.
41 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.60.
42 See Notice of Claim of Lisa Horn Brichetto, Lisa Horn Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141112.
18
dollars in [her] checking account.”45 Nonetheless, Defendant Horn Brichetto and Defendant Brichetto left
that hearing in a Fiat automobile owned by and registered to Defendant Horn Brichetto. To boot, the
Defendants had two Fiat vehicles outside their residence when the Tennessee Department of Probation
and Parole performed their home visit in late July.
This court held a second hearing on May 20, 2015, during which Defendant Brichetto again took the
stand and testified under oath. On that date, Defendant Brichetto had filed a Motion to Discharge his
Appointed Counsel. The Motion was argued during the hearing and Defendant Brichetto testified that he
did not lie on his Affidavit of Indigency. 46 Defendant Brichetto further testified that the first expert
retained by the Defense simply did not forward a report after being paid. 47 In fact, the Court had
previously advised the attorneys that the expert contacted the Associations of the Courts and advised the
report was not forwarded because Defendant Brichetto failed to meet, discuss or disclose any information
to assist in drafting the report. To make matters worse, Defendant Brichetto contradicted himself by first
saying he complied with all requests and responded to all communications and then saying he never
spoke with the expert.48
At trial, Defendant Brichetto’s attorney referenced Northington Energy as a “start up business that failed”
in an Opening Statement to the jury. Defendant Brichetto supported this statement with the information
that he gave the Tennessee Bureau of Investigation during the recorded interview in May 2011. In spite
of these remarks, Northington Energy is an active Corporation per the Wyoming Secretary of State’s
website. As of April 2015, Northington Energy, LLC is back in business, at least in Wyoming.
43 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February, 11, 2015, p.63.
44 See Affidavit, filed as Exhibit to Transcript of the Evidence, Motions Hearing, State of Tennessee v.
John H. Brichetto, Jr., Morgan County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015.
45 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated February 11, 2015, p.64.
46 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.29-31, 36-37.
47 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.37-38.
48 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015, p.38-39.
19
Intriguingly, on March 29, 2014, Northington Energy, LLC issued a Press Release online, announcing its
new “regional manufacturing, distribution and research center . . . in the I-24/I-75/I-59 corridor of Eastern
Tennessee.”49 Defendant Horn Brichetto is referenced in the Release as “Director of New Business
Development” even though she insists that she has no connection with Northington Energy. The contact
person is listed as Defendant Brichetto.
Also at trial, Defendant Horn Brichetto, through arguments by her attorney, asserted that she had no
connection to Northington Energy and was not responsible for the actions of the company. Nevertheless,
the evidence showed that Defendant Horn Brichetto had to delegate the authority to Defendant Brichetto
to act on behalf of Northington Energy. What is more, Defendant Horn Brichetto was the person who’s
name was on the Corporate Documents at the Wyoming Secretary of State’s Office for another LLC
created by the Brichettos called Zenalgae.50 Zenalgae was a company that was purported to have sold
Northington Energy over $38,000 in equipment under the Feedstock Loan Program in Morgan County;
yet, Defendant Horn Brichetto signed the Annual Statement for Zenalage and claimed there were “0”
assets.
Other untruths are exhibited in the pleadings and documents either filed by the Defendants or admitted to
evidence at trial. Defendant Brichetto has argued, personally and through counsel, the unofficial review
of the records and accountings of Northington Energy by the Economic and Community Development,
including the informal “audit” by John Morton, was, in fact, not an audit. 51 Yet, Defendant Brichetto is
suing the State of Tennessee in the Claims Commission for “Auditor Malpractice” and “Fraud” by trying
to say it was a formal but deficient “audit.”52 Additionally, Defendant Brichetto pleads the criminal case
was only to “’collect a debt’ by prosecution.”53
Defendant Horn Brichetto asserts in her pleadings that she was “without legal authorization to initiate or
sign company documents, including loan agreements, checking accounts, bank checks, company debit or
49 http://www.dieselboostplus.com/news.php and http://www.pr.com/press-release/549844
50 See trial exhibits.
51 See Defendant’s Motion to Suppress and Memorandum of Law in Support of Motion to Dismiss,
State of Tennessee v. John H. Brichetto, Jr., Morgan County Criminal Court Case No. 2011-CR-41 A.
52 See Notice of Claim of John H. Brichetto, John H. Brichetto v. State of Tennessee, John S. Morton,
CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and Community
Development, Tennessee Claims Commission, Division of Claims Administration, Claim No. 20141069.
53 Id.
20
credit card or any legal documents pertaining to company operations.” 54 The truth, however, was that
Defendant Horn Brichetto had to execute a Corporate Resolution as “Director of Northington Energy” to
delegate authority to her husband and co-convicted, Defendant John Brichetto, for Defendant Brichetto to
enter into the State Agreement, execute documents, etc. 55 Defendant Horn Brichetto was further shown to
have signed other documents outlining her executive/corporate positions with Northington Energy and
Zenalgae.56 These are nothing more than diversions and deviations of the truth.
It is clear from statement after statements and exhibit after exhibit that Defendant Brichetto and
Defendant Horn Brichetto have yet to be truthful to this court. In kind, this Court should not give the
Defendants any deference and both should be sentenced to confinement.
LACK OF CANDOR AND ACKNOWLEDGMENT OF CULPABILITY,
“Lack of candor may militate against a grant of probation.” State v. Kendrick, 10 S.W.3d 650
(Tenn. 1999). Furthermore, “evidence that [a] defendant acknowledged little culpability for his actions
supported finding a sentence of confinement, rather than alternative sentencing option.” State v.
Gutierrez, 5 S.W.3d 641 (Tenn. 1999).
Throughout the prosecution of this case, the Defendants argued any number of excuses for the
theft of the loan monies:
-
Northington Energy was a “start up business” and it simply failed;
-
The monies were stolen by Northington Energy and not the Defendants;
-
The money that purchased the equipment came from another bank account;
-
The equipment was bought, was functional and was located in Knoxville when it was
stolen;
-
This was a civil/contract matter and not a criminal case.
None of these excuses were compelling to the jury and none saved the Defendants from
conviction. Nevertheless, the Defendants continue to utter these excuses to the media, and, apparently,
even to themselves. Neither of the Defendants has come forward with the truth - or even part of the truth
- about what happened in this case. Neither of the Defendants has displayed or expressed any remorse,
54 See Notice of Claim of Lisa Horn Brichetto, Lisa Horn Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141112.
55 See Trial Exhibits.
56 See Trial Exhibits.
21
repentance, or regret for their actions. To the contrary, Defendant Brichetto and Defendant Horn
Brichetto remain complicit and contrite in all they have done and all they continue to do.
On Friday, July 10, 2015, two days after the verdict, an email from “Theresa Lance, Northington
Energy, Media Relations,” who the State believes is a nom de plume for one of the Defendants, was sent
to Josh DeVine, a Public Information Officer with the Tennessee Bureau of Investigation. The e-mail
requested the “removal” of the May 2011 Press Release announcing the arrest of the Defendants. The email stated the “review of the facts” would show “(1) No Grant Money was involved in this case. (2)
Neither Mr. or Mrs. Brichetto ever received ‘two separate checks in June of 2008 and July 2008 totaling
approximately $142,000.’ The checks in question were received by our company Northington Energy
LLC. (3) ‘Through an audit conducted by the Division of State Audit and the Department of Economic
and Community Development [this was discovered].’ Per recent court testimony by Melissa Boaz, State
of Tennessee Office of the Comptroller, no State audit was ever conducted.”
Then, two weeks later, on Friday, July 24th, a “lady” from Northington Energy called the Public
Information Officer with the TBI. The call was also regarding the May 2011 Press Release.
This information is significant in the timeline of events and is part and parcel to the lack of
potential for the Defendants’ rehabilitation when viewed in the totality of this case. As the Court may
recall, Defendant John H. Brichetto, Jr. initially filed a Motion for the TBI to Retract the Media Press
Release and for Sanctions to be applied as a result. Defendant Brichetto then subpoenaed the out of town
former employee of the TBI who drafted the Release. Motions were filed and arguments were heard for
and against quashing said subpoena. Ultimately, the Court quashed the subpoena and ruled no additional
subpoenas were to be issued without prior review by Defendant Brichetto’s appointed attorney.
Regardless, in an abundance of caution, Assistant Attorney General SaraBeth Myers traveled from
Nashville to be present at the Hearing and was prepared to handle the Motion on behalf of the Tennessee
Bureau of Investigation. However, no arguments were made because Defendant Brichetto, on the Record,
withdrew the Motion.57 Furthermore, Defendant Brichetto’s attorney advised the Motion would not be
renewed or pursued at a later date. Still, process was issued at the request of Defendant Brichetto to the
same individual who drafted the Press Release in 2011, demanding the witness’s presence at trial, over the
prior directions of this Court and the word of Defendant Brichetto.
Ancillary to the criminal trial, and through these abusive and reproachful acts, the Defendants – both John
H. Brichetto, Jr. and Lisa Horn Brichetto - continue to push their fiction with e-mails, telephone calls, etc.
The Defendants simply will not stop their attempts to manipulate the system and positively refuse to
admit any culpability in this scheme. Under no circumstances was any action by the TBI inappropriate or
57 Transcript of the Evidence, Motions Hearing, State of Tennessee v. John H. Brichetto, Jr., Morgan
County Criminal Court Case No. 2011-CR-41 A, dated May 20, 2015.
22
improper - especially in light of the fact the Defendants were convicted by a Morgan County Jury of the
acts which are outlined in the very same Press Release that has captured the Brichettos’ attention and
become an obsession. Such behavior by the Brichettos is nothing short of harassment, collateral only to
the criminal conviction and continuing illegal activities of Defendants Brichetto and Horn Brichetto.
Such obloquious conduct is intentionally inflicted upon others by the Defendants without any regard to
consequences, accountability, or culpability.
The Defendants have attempted to shape and manipulate this case from the very beginning to the
very end. On or about May 18, 2015, the State received a letter purporting to have been drafted by a
James R. Salisbury of Riske, Salisbury & Reyes, P.C., in Cheyenne, Wyoming. 58 The letter, addressed to
Randy Boyd, the Commissioner of the Department of Economic and Community Development, stated the
firm “represents Northington Energy, LLC in various business matters in the State of Wyoming.”
Salisbury went on to write that “[Their] client . . . authorized th[e] firm to submit a tender offer to the
State of Tennessee” in which “[t]he State would retain its secured interest in the equipment detailed in the
equipment list attached to the [original] Agreement.” This letter was copied to Northington Energy, LLC
and the District Attorney General’s Office. Interestingly enough, the letter confirms the verdict by the
Morgan County jury in finding the Defendants guilty of theft. It also confirms the amount of monies
(being $142,214.15) taken by Defendant Brichetto and Defendant Horn Brichetto through the façade of
Northington Energy. Finally, the letter references “the equipment” the State used as collateral, a further
irony considering the Defendants never purchased the equipment. This language in the letter is extra
puzzling considering one of the defense theories was that the equipment was stolen from the Brichettos.
Notwithstanding the prosecution and pending trial, the State of Tennessee Department of
Economic and Community Development responded with a brief and simple letter advising of the criminal
litigation and the State’s corresponding inability to “address th[e] matter.” 59 This letter was forwarded on
or about May 27, 2015, and was answered by a second letter from the Wyoming law firm. 60
On June 9, 2015, Mr. Salisbury, allegedly on behalf of Northington Energy, drafted a response
that stated he was “aware that one of the members of Northington Energy LLC, John Brichetto, is
involved in criminal litigation in the State of Tennessee. [However], Mr. Brichetto’s wife, Lisa-Horn
Brichetto, was not and has never been a member, officer, manager or principal of Northington.” Once
again, this is an astonishing, deceptive, and beguiling statement as Defendant Horn Brichetto was the self
58 See attached as Exhibit .
59 See Letter, attached as Exhibit .
60 See Letter, attached as Exhibit .
23
proclaimed “Manager” of Northington Energy per documents filed with the Tennessee Secretary of
State’s Office and per the Corporate Resolution for Northington Energy, signed by Defendant Horn
Brichetto as “Director” of Northington Energy. The Corporate Resolution delegated authority to
Defendant Brichetto to sign documents on behalf of Northington Energy and “purchase equipment” under
the Feedstock Loan. All of these documents were filed as Exhibits during the trial and all of these
documents demonstrate the Defendants, have not, and likely will not, show any candor to the Court or
acknowledge any guilt in this crime.
One final avenue of deceit, manipulation, and provocation by the Defendants that is evidence of
their refusal to acknowledge any wrongdoing or culpability, is the continuing civil cases before the
Claims Commission over the same subject matter as the criminal case. Defendant Brichetto and
Defendant Horn Brichetto have each sued the State of Tennessee pertaining to the Feedstock Loan
between the State, Morgan County, and Northington Energy, claiming wrongdoing on the part of the State
even though the Defendants were convicted in criminal court for the theft of the monies. Both
Defendants have filed lawsuits alleging: (1) Auditor Malpractice on the part of John Morton; (2) Fraud by
John Morton; (3) Defamation; and (4) Intentional Infliction of Emotional Distress. 61 Defendant Brichetto
and Defendant Horn Brichetto are each requesting “no less than Three Hundred Thousand Dollars
($300,000.00) and no more than One Million Dollars ($1,000,000.00) plus interest . . costs and expenses,
including reasonable attorneys fees and costs.” 62 It is insulting enough that the Defendants stole over
One Hundred and Forty Thousand Dollars ($140,000) from the State of Tennessee and the people of
Morgan County, but it is something wholly different and infuriating that the Brichettos, convicted of
felony theft, are now suing the State for the monies they stole, “defamation and infliction of emotional
distress.”63
On the 17th day of July, merely nine days after the verdict, Defendant Brichetto filed a Second Motion to
Reconsider Order Placing Claim in Abeyance. In this Motion, Defendant Brichetto wrote “the stay was to
61 See Notice of Claim of John H. Brichetto, John H. Brichetto v. State of Tennessee, John S. Morton,
CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and Community
Development, Tennessee Claims Commission, Division of Claims Administration, Claim No. 20141069.
62 See Notice of Claim of Lisa Horn Brichetto, Lisa Horn Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141112 and Notice of Claim of John H. Brichetto, John H. Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141069. Also note both Defendants, though asking for attorneys fees, are representing themselves Pro
Se without licensed legal representation.
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remain in place until the criminal matter has been settled. The criminal matter was heard on July 6 th,
2015, and was settled.”64 Defendant Brichetto did not advise the Claims Commission that he or his wife,
Defendant Horn Brichetto, were convicted of a felony in the theft of the very monies for which the
Brichettos are suing the State of Tennessee.
There will likely never be a forthcoming admission of guilt or conscience from the Defendants as there
appears to be only ego, fraud, lies and greed. Accordingly, the Court should offer no safe haven to the
Defendants from incarceration and no consideration for any alternative sentencing.
Other Factors and Considerations
Within these sentencing guidelines, the court has the discretion and, arguably the responsibility, to
also apply enhancing factors to the above referenced sentencing considerations. These include that the
defendant was a leader in the commission of an offense involving two or more criminal actors; the
offense involved more than one victim; . . . and the defendant abused a position of public or private
trust.” Tenn. Code Ann. §40-35-114(1-3, 14).
LEADER IN OFFENSE INVOLVING TWO OR MORE CRIMINAL ACTORS,
TENN CODE. ANN. §40-35-114(2)
“The Leader” was a question that was not resolved with the trial; however, “the statute governing
the sentence enhancement factor for being a leader in commission of the offense involving two or more
actors does not require that the defendant be the leader, only that the defendant be a leader.” State v.
Madden, 99 S.W.3d 127 (Tenn. 2002), appeal denied. It could be argued that either Defendant was “the
leader” in this offense, but, either way, both Defendants were intimately involved in the theft of the
Feedstock Loan monies and both Defendants were leaders.
Evidence against Defendant Brichetto included the fact that he used a false Social Security
Number on the Credit Authorization and on the Account Application at Citizens National Bank - the
63 See Notice of Claim of Lisa Horn Brichetto, Lisa Horn Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141112 and Notice of Claim of John H. Brichetto, John H. Brichetto v. State of Tennessee, John S.
Morton, CPA, in his Capacity as an Auditor for the State of Tennessee Office of Economic and
Community Development, Tennessee Claims Commission, Division of Claims Administration, Claim No.
20141069.
64 See Order, John H. Brichetto v. State of Tennessee, John S. Morton, CPA, in his Capacity as an
Auditor for the State of Tennessee Office of Economic and Community Development, Tennessee Claims
Commission, Division of Claims Administration, Claim No. 20141069.
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account, per Defendant Brichetto of Northington Energy, even though Defendant Brichetto testified
before this Court that “it would have been an error if he [transposed the middle two digits of his Social
Security Number].” Further, Defendant Brichetto’s name was on most of the loan documents with the
State as “Owner.” Defendant Brichetto was the self proclaimed signee of most of the checks from the
Northington Energy bank account. Defendant Brichetto was the one who handled the invoices, including
the false or fraudulent documents, submitted to the State as proof of the purchase of equipment, and
Defendant Brichetto was allegedly the figure head of all public relations matters involving Northington
Energy.
On the other hand, an equally compelling argument could be made that Defendant Horn Brichetto
was in fact “the leader” in this offense, yet accomplished much more success by distancing herself in the
overt decisions and actions that ultimately convicted the Defendants. Defendant Horn Brichetto was the
“Manager” of Northington Energy and had to sign the Corporate Resolution to delegate authority to
Defendant Brichetto to “purchase equipment under the feedstock loan and sign documents on behalf of
Northington Energy. Defendant Horn Brichetto signed as Managing Member and Registered Agent of
Northington Energy with Tennessee’s Secretary of State as well as Registered Agent of Zenalgae, LLC in
Wyoming. From testimony at trial, it was confirmed that Defendant Horn Brichetto appeared at the
ribbon cutting ceremony as corporate representative of Northington Energy and, although all of the
checks from the Northington Energy account had Defendant Brichetto’s name on the signature lines, not
all checks contained the same signature. Defendant Brichetto confirmed in his recorded statement with
the TBI that Defendant Horn Brichetto was “primarily involved in the . . . recruiting side. She was more
involved in that and the PR and that sort of thing” (emphasis added).
It may simply be inferred that Defendant Horn Brichetto was much more cognizant and careful
about attenuating herself from the apparent acts of the companies to avoid detection and prosecution. By
doing such, Defendant Horn Brichetto could always make the defensive argument of plausible deniability
and that she was “just the wife.” Either way, both Defendants planned, knew of, and equally carried out
the plan to fleece the public monies from the State of Tennessee and Morgan County. As a result, both
should be held equally responsible, equally at fault, and be equally punished with imprisonment.
MORE THAN ONE VICTIM, TENN CODE ANN. §40-35-114(3)
“A ‘victim,’ for sentence enhancement purposes for offenses involving more than one victim, is a
person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of
a crime.” State v. Cowan, 46 S.W.3d 227 (Tenn. 2000), appeal denied. The crime in this case was the
theft of public monies for the enjoyment of private luxuries. The victims in the case, however, are not so
easily identified. Definitively, there are two victims: the State of Tennessee and Morgan County, but there
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are also countless, nameless, and unidentified victims that often go unrecognized. By stealing monies
allotted for the greater good of Morgan County (and Tennessee in general), the Defendants, without
remorse or even acknowledgment, robbed jobs, development, potential pride, and industry from the
peoples of this area.
POSITION OF TRUST, TENN. CODE ANN. §40-35-114(14)
“To determine application of factor allowing enhancement of sentence when defendant abuses
position of private trust, the court must look to the nature of the relationship and whether that relationship
promoted confidence, reliability, or faith.” State v. Gutierrez, 5 S.W.3d 641 (Tenn. 1999). As seen
through the testimony of Becky Ruppe, former Executive of Morgan County, and Jeff Bolton from the
Department of Economic and Community Development in Nashville, the loan monies stolen by the
Defendants were gained through a formal application process (in which the Defendants were deceptive
and dishonest), but it was also a process of good faith efforts and implied trust. Perhaps the State and
Morgan County could have more diligent and more invasive in vetting the Defendants prior to releasing
the funds, but this was a situation no one in Wartburg or Nashville had ever experienced before. The
Defendants had, in fact, entered into numerous contracts as a result of the three party agreement. There
was actual work being done on site in Morgan County. The scam by the Defendants was done well
enough and flawlessly enough in the beginning that everyone involved was fooled. The business and
opportunity appeared legitimate and the Brichettos seemed honest and trustworthy. Morgan County and
the Department of Economic & Community Development promoted Northington Energy. They held
ribbon cutting ceremonies. They donated land to Northington Energy in the business park. There were
job fairs, press releases, news articles, etc. It was a partnership of trust, of confidence and of faith
between three entities: The State of Tennessee, Morgan County, and the Defendants, Northington Energy.
Out of the three, the Defendants were the ones that broke the partnership and stole the funds. Wherefore,
the Defendants, having lined their pockets with public monies earmarked for community and economic
development, must receive no mercy through alternative sentencing. The Court must apply enhancement
factors as outlined by statute, and the Brichettos must be sentenced to prison.
Conclusion
For the above stated reasons, and any others that may be raised at the Sentencing Hearing, the
State respectfully requests that the Court impose a ten (10) year term of confinement with the Tennessee
Department of Corrections for Defendant Brichetto as a Range I/Standard Offender and an eight (8) year
term of confinement with the Tennessee Department of Corrections for Defendant Horn Brichetto as a
Range I/Standard Offender. Additionally, the State requests the Defendants be jointly and severally liable
27
for court costs and restitution to the State of Tennessee in the amount of One Hundred Forty Two
Thousand Two Hundred Fourteen Dollars and Fifteen Cents ($142,214.15). Finally, the State submits the
Defendants be required to complete an Alcohol & Drug Assessment, follow all recommendations
stemming from the assessment, perform one hundred hours (100) of community service, attend and
successfully graduate an Anger Management Course, and be refrained from any contact with the persons,
properties, or families of any witness or victim in this matter.
Respectfully submitted, this
day of August, 2015.
L. RUSSELL JOHNSON,
District Attorney General,
NINTH JUDICIAL DISTRICT
By:
TIFFANY S. SMITH, BPR # 032371
Assistant District Attorney General,
NINTH JUDICIAL DISTRICT
1008 Bradford Way, Suite 100
Kingston, Tennessee 37763
Office: (865) 376-2145 x 109
Fax: (865) 376-2148
[email protected]
CERTIFICATE OF SERVICE
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I hereby certify that a true and exact copy of the foregoing Memorandum has been forwarded, via email
and/or U.S. Mail, postage pre-paid, this the
day of August, 2015, to the following:
Ms. Mary Ward, Esq.
Appointed Counsel for Defendant John H. Brichetto, Jr.
Post Office Box 23382,
Knoxville, Tennessee 37933
(865) 671-4480
[email protected]
Mr. Brad Neff, Esq.
Appointed Counsel for Defendant, Lisa Horn Brichetto
Post Office Box 337
Jamestown, Tennessee 38556
[email protected]
Ms. Bobbie Cox,
Deputy Clerk,
Morgan County Criminal Court Clerk’s Office
Post Office Box 324
Wartburg, Tennessee 37887
(423) 346-3503
[email protected]
Mr. Wayne A. Sutter,
Staff Attorney to Senior Judge Paul G. Summers
1 Public Square, Suite 708
Nashville, Tennessee 37201
(615) 880-2710
[email protected]
TIFFANY S. SMITH, BPR # 032371
Assistant District Attorney General,
NINTH JUDICIAL DISTRICT
1008 Bradford Way, Suite 100
Kingston, Tennessee 37763
Office: (865) 376-2145 x 109
[email protected]
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