                                                                                             06/25/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville April 23, 2019

       STATE OF TENNESSEE v. MARIO MARQUETTE McADOO

                Appeal from the Criminal Court for Davidson County
                    No. 2013-I-1213 Mark J. Fishburn, Judge


                             No. M2018-01113-CCA-R3-CD


The Defendant, Mario Marquette McAdoo, appeals from the Davidson County Criminal
Court’s revocation of his probation for his convictions for four counts of felony theft,
misdemeanor assault, and misdemeanor resisting arrest and its order that he serve the
remainder of his effective ten-year sentence in confinement. The Defendant contends that he
received the ineffective assistance of counsel at the revocation hearing and that, as a result,
he is entitled to a new revocation hearing. We affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

John H. Morris (on appeal), Nashville, Tennessee; Dawn Deaner, District Public Defender;
and William Allensworth (at revocation hearing), Assistant District Public Defender, for the
appellant, Mario Marquette McAdoo.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and Vince Wyatt, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        On January 24, 2014, the Defendant was indicted for four theft-related offenses,
assault, and resisting arrest. On March 6, 2014, the Defendant pleaded guilty to four counts
of felony theft, misdemeanor assault, and misdemeanor resisting arrest, and he received a
ten-year sentence to be served on community corrections. The record reflects that, at some
point, the Defendant “completed” community corrections and began serving his sentence on
probation. On December 4, 2017, a probation violation report was filed with the trial court,
alleging that on November 26, 2017, the Defendant had been arrested for two counts of
criminal trespass and felony theft, that he had failed to provide proof of employment, that he
had failed to pay supervision fees, and that he had failed to stay away from “big box stores,”
stores that sell electronics, and Walmart. An arrest warrant was issued. On April 17, 2018,
an amended probation violation report was filed with the court, alleging that on April 3,
2018, the Defendant had been arrested for “resist stop, halt, arrest, or search” and for evading
arrest, that he had failed to report his arrest, and that he had engaged in assaultive behavior.
An arrest warrant was issued. On May 2, 2018, a second amended probation violation report
was filed with the court, alleging that on November 4, 2017, the Defendant had been arrested
for theft and two counts of criminal trespass. An arrest warrant was issued.

        At the revocation hearing, the Defendant admitted he violated the conditions of his
probation by returning to and stealing from Walmart. The trial court found that the
Defendant acknowledged that he had violated the conditions of his release. The court found
that “the problem” with the Defendant was his lack of credibility. The court questioned the
veracity of the employment documentation that the Defendant submitted to his probation
officer, noting discrepancies and inconsistencies in the street addresses, towns, and zip
codes. The court found that the employment documentation was “just a prime example of the
smoke that [the Defendant was] trying to blow and hoping that we will accept it.” The court
found that it could not credit the Defendant’s testimony and that he had “clearly” violated the
conditions of his release. The court determined that the Defendant was a “con artist and a
thief” and ordered the Defendant to serve the remainder of his ten-year sentence in
confinement. This appeal followed.

        The Defendant contends that he received the ineffective assistance of counsel before
and at the revocation hearing because counsel failed to investigate and prepare adequately.
The Defendant argues that the “combined effect” of counsel’s failures was ineffective
assistance. He states in his brief,

       It is that the combined effect of [counsel’s] failings; from his almost
       immediate decision that the proper disposition for this case was settled by plea
       agreement, making no attempt to determine any possible strategy for the
       hearing and his inadequate performance by not ensuring [the Defendant] had
       the ability to understand the terms of his plea agreement.

Regarding the revocation hearing, the Defendant asserts that counsel was ineffective because
counsel failed to provide any details of the violation allegations, to meet “meaningfully” with
the Defendant, and to meet with any potential defense witnesses identified by the Defendant.
He argues that counsel had a “general disinterest” during the representation and refused to
review a timeline and summary of events the Defendant prepared. Furthermore, the
Defendant requests appellate review of his ineffective assistance claim pursuant to United
States v. Cronic, 466 U.S. 648 (1984). The State responds that the evidence supported the

                                              -2-
trial court’s decision to revoke the Defendant’s probation and that the Defendant was
“afforded the minimum requirements of due process” at the revocation hearing.

        The Defendant raises for the first time on appeal the allegation that trial counsel
provided ineffective assistance before and during the probation revocation hearing.
Appellate review of issues that are not raised and litigated in the trial court are generally
waived. See Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990) (waiving appellate review of
whether counsel provided ineffective assistance during voir dire because the issue was raised
for the first time on appeal and not litigated in the lower court); State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995); James Larry Depew v. State, No. 03C01-9504-CR-
00116, 1995 WL 495927, at *2 (Tenn. Crim. App. Aug. 21, 1995) (waiving appellate review
of ineffective assistance and involuntary guilty plea allegations because the issues were not
raised and litigated in the lower court); see also T.R.A.P. 36(a). The appellate record does
not contain evidence related to the Defendant’s ineffective assistance claims, and a trial court
has not had the opportunity to consider the allegations and to provide findings of fact and
conclusions of law. See T.R.A.P. 36(a) (“[R]elief may not be granted in contravention of the
province of the trier of fact.”). Therefore, this court is prevented from reviewing the sole
basis for which the Defendant seeks appellate relief.

        The Defendant has challenged neither the trial court’s determination that he violated
the conditions of his release nor the court’s decisions to revoke his probation and to order his
sentence into execution. In any event, the Defendant admitted at the revocation hearing that
he violated the conditions of his release, and the court did not abuse its discretion by
revoking his probation. See T.C.A. § 40-35-311(e)(1). Once the court revoked the
Defendant’s probation, it had the authority to order the Defendant to serve the remainder of
his sentence in confinement. See id. §§ 40-35-308(a), (c), -310. The Defendant is not
entitled to relief.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.




                                             _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




                                              -3-
