        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                  Assigned on Briefs February 13, 2013

          STATE OF TENNESSEE v. DAVID PAUL ZWARTON

                   Appeal from the Circuit Court of Bedford County
                       No. 17395 Franklin Lee Russell, Judge


               No. M2012-01934-CCA-R3-CD - Filed February 14, 2013


David Paul Zwarton (“the Defendant”) pleaded guilty to one count of theft of property of
$1,000 or more but less than $10,000. Pursuant to the plea agreement, the Defendant was
sentenced as a Range I, standard offender to three years, leaving the trial court to determine
whether the sentence would be served concurrently or consecutively to a four-year sentence
imposed by the Coffee County Circuit Court. After a hearing, the trial court ordered that the
Defendant serve his three-year sentence consecutively to his Coffee County sentence. The
Defendant appealed the trial court’s ruling. Upon our thorough review of the record, we
affirm the judgment of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Stephanie T. Barca, Assistant Public Defender, for the appellant, David Paul Zwarton.

Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel;
Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       On June 15, 2012, the Defendant pleaded guilty to one count of theft of property of
$1,000 or more but less than $10,000. Pursuant to the plea agreement, the trial court
sentenced the Defendant to serve three years in confinement and held a hearing to determine
whether the Defendant would serve his sentence concurrently or consecutively to a four-year
sentence imposed by the Coffee County Circuit Court in case number 39314F.

       At the guilty plea hearing, the State recited the factual basis for the Defendant’s guilty
plea as follows:

               On November 27th of 2011, Silverio Garcia of A and G Joyemex
       reported to Officer Brock Horner of the Shelbyville Police Department that a
       white male entered the store at approximately 10:30 a.m. and began looking
       around. Mr. Garcia stated that there was a backpack behind the counter that
       had two gold necklaces that he had just purchased from a customer lying on
       them. After the white male had left, he noticed that those two necklaces were
       gone, and he reported that to the police department. That white male was later
       identified to be [the Defendant] because the next day, [the Defendant] returned
       to the store, and Mr. Garcia recognized him and wrote down his license plate
       number, turned that over to Detective Jacobs, who was able to locate the two
       necklaces as being sold for cash at Most Cash For Gold located also here in
       Shelbyville where he obtained pictures of [the Defendant] entering the store.
       [The Defendant] then was contacted. He came down to the police station and
       talked to Detective Jacobs and admitted to his role in taking the two necklaces
       and selling them, and they were valued at over $1,000.

The Defendant agreed to this recitation of the facts. The trial court inquired into whether the
Defendant had “the permission of the owner of the necklaces[,]” to which the Defendant
stated, “No.” The trial court then asked the Defendant whether he “took them for the purpose
of selling them and getting cash for them[,]” to which the Defendant replied, “Yes.” Lastly,
the Defendant agreed that he “meant to deprive the owner of the property” and that the
amount was $1,000 or more.

       Thereafter, the trial court held a sentencing hearing on August 17, 2012, to determine
whether the Defendant’s three-year sentence would be served concurrently or consecutively
to his Coffee County sentence. At the hearing, the presentence report was admitted as an
exhibit without objection. A copy of the warrant in this case also was admitted without
objection. No other evidence was presented at the hearing.

      In ordering the Defendant’s three-year sentence to be served consecutively to his
Coffee County sentence, the trial court first noted that it must begin its analysis with a
presumption in favor of concurrent sentencing. The trial court then held that Tennessee Rule
of Criminal Procedure 32(c)(3) mandates consecutive sentencing because “while [the
Defendant] was out on bond on our case, he committed the simple possession of Schedule


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II and the theft between a thousand and $10,000” in Coffee County. Alternatively, the trial
court found that, assuming consecutive sentencing is not mandatory, the presumption in favor
of concurrent sentencing is “overcome because of the [Defendant’s] extensive criminal
record.” Lastly, the trial court noted that the “seven years total that results from making this
a consecutive sentence, I do not find that to be unreasonable. . . . I do not find that this is
more than [what] is absolutely necessary given his past record and given the seriousness of
the crimes he’s committed in both places.”

       The Defendant now appeals.

                                           Analysis

                                         Sentencing

        The trial court ordered that the Defendant’s three-year sentence in this case be served
consecutively to his Coffee County sentence. The trial court first determined that
consecutive sentencing was mandatory in this case pursuant to Tennessee Rule of Criminal
Procedure 32(c)(3). The trial court alternatively concluded that consecutive sentencing was
proper based upon the Defendant’s extensive criminal record. The Defendant contends that
the trial court erred in ordering consecutive sentencing on either ground.

        On appeal, when the record establishes that the trial court imposed a sentence within
the appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). This Court will uphold the trial court’s sentencing decision “so long as
it is within the appropriate range and the record demonstrates that the sentence is otherwise
in compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under those circumstances, we may not disturb the sentence even if we had preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing
the sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401,
Sent’g Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       Tennessee Code Annotated section 40-20-111(b) (2006) provides:

       In any case in which a defendant commits a felony while the defendant was
       released on bail in accordance with chapter 11, part 1 of this title, and the
       defendant is convicted of both offenses, the trial judge shall not have
       discretion as to whether the sentences shall run concurrently or cumulatively,
       but shall order that the sentences be served cumulatively.


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Similarly, Tennessee Rule of Criminal Procedure 32(c)(3) states:

       (3) Mandatory Consecutive Sentences. When a defendant is convicted of
       multiple offenses from one trial or when the defendant has additional
       sentences not yet fully served as the result of convictions in the same or other
       courts and the law requires consecutive sentences, the sentence shall be
       consecutive whether the judgment explicitly so orders or not. This rule shall
       apply:

       (A) to a sentence for a felony committed while on parole for a felony;

       (B) to a sentence for escape or for a felony committed while on escape;

       (C) to a sentence for a felony committed while the defendant was released on
       bail and the defendant is convicted of both offenses; and

       (D) for any other ground provided by law.

       Based upon these provisions, consecutive sentencing was mandatory in this case. The
Defendant was arrested for the offense in this case on December 5, 2011. Thereafter, he was
released on a $500 bond. While released on bond in this case, the Defendant committed the
Coffee County offenses. He was sentenced to serve four years in confinement in the Coffee
County case. Thereafter, the Defendant pleaded guilty to the indicted offense in this case on
June 15, 2012. The trial court properly ordered that the Defendant’s three-year sentence in
this case be served consecutively to his Coffee County sentence. Although the Defendant
was not on bail when the instant offense was committed, the chronological order of
convictions are irrelevant because the sentences are mandatorily consecutive in either case.
See State v. Blanton, 926 S.W.2d 953, 961 (Tenn. Crim. App. 1996) (holding that it is
irrelevant that a defendant is first convicted of the offense committed while on bail and then
convicted of the offense which released him on bail in determining that consecutive
sentences were mandatory in the latter case); see also State v. Bryan Ray Phillips, No.
M2009-00145-CCA-R3-CD, 2010 WL 653005, at *3 (Tenn. Crim. App. Feb. 24, 2010),
perm. app. denied (Tenn. Aug. 25, 2010) (holding that the trial court properly ordered that
the sentence in the instant Bedford County case be served consecutively to his Cannon
County sentence, even though the Defendant was first convicted of the Cannon County
offense which the Defendant committed while he was released on bond for the instant
Bedford County offense).

        Accordingly, the trial court properly ordered that the Defendant’s three-year sentence
in this case be served consecutively to his Coffee County sentence. Because we find that the


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trial court did not error in determining that consecutive sentencing was mandatory in this
case, we need not address the trial court’s holding with respect to discretionary consecutive
sentencing. Thus, the Defendant is entitled to no relief on this issue.

                                      CONCLUSION

       For the reasons set forth above, we affirm the judgment of the trial court.



                                           ________________________________
                                           JEFFREY S. BIVINS, JUDGE




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