MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Aug 18 2020, 8:34 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana

                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary A. Cutshall,                                     August 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-776
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Davin G. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         35C01-1806-F5-137



Altice, Judge.



                                       Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020                  Page 1 of 7
[1]   Zachary Cutshall appeals the ten-year aggregate sentence that was imposed

      following his conviction for domestic battery resulting in serious bodily injury, a

      Level 5 felony, and the adjudication as a habitual offender. Cutshall claims that

      the trial court abused its discretion in ordering the sentence to be served

      consecutively to the sentences imposed in two other causes.


[2]   We affirm.


                                 Facts and Procedural History

[3]   Cutshall and his wife, Jessica Welker, lived with Cutshall’s grandfather, Robert,

      in Huntington. Sometime during the evening of January 22, 2018, Welker and

      Cutshall started to argue because Cutshall was texting another woman on his

      phone. Welker became angry, told Cutshall that she wanted a divorce, and

      decided to pack her belongings and leave. As she was walking out of the

      residence, Cutshall followed her and screamed, “you’re not leaving.” Transcript

      Vol. III at 51. Welker lost consciousness, and she next remembered waking up

      in the bathroom with “blood pouring out of [her] mouth and a sharp pain in

      [her] ear.” Id.


[4]   Robert drove Welker to the hospital, where she told the medical staff that she

      had fallen down the stairs. Welker was “too scared to tell them” that her

      “husband had beat[en] [her].” Id. at 53, 56. Cutshall subsequently told his

      father and a friend that he hit Welker and was convinced that he was “going

      back to prison.” Id. at 83.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020   Page 2 of 7
[5]   Welker received stitches for a cut on her forehead, and her mouth was “banded

      shut” because Cutshall had broken her jaw. Id. at 58. Welker eventually had

      braces placed on her teeth and during the healing process, she suffered from

      migraine headaches, temporarily lost her eyesight, and was in extreme pain. At

      some point, Welker could not move her mouth and was only able to drink

      blended food through a straw. Despite treatment, Welker’s jaw was misaligned

      and it had to be rebroken so rods, plates, and bolts could be placed in her

      mouth.


[6]   On June 26, 2018, the State charged Cutshall with domestic battery resulting in

      serious bodily injury, a Level 5 felony, and domestic battery, a Class A

      misdemeanor. The State also alleged Cutshall was a habitual offender.

      Thereafter, the trial court granted the State’s motion to add a Level 3 felony

      aggravated battery charge.


[7]   When Cutshall committed these offenses, he was on parole under cause number

      35D01-1002-FB-49 (FB-49) for dealing in a controlled substance, a class B

      felony. Cutshall’s parole was later revoked, and he is currently serving time on

      that offense. Additionally, Cutshall was charged with auto theft as a Level 6

      felony in March 2018, under cause number 35D01-1803-F6-46 (F6-46) and was

      subsequently convicted and sentenced for that offense in October 2019.

      Cutshall was also charged with committing synthetic identity deception, a Level

      6 felony, under cause number 90D01-1804-F6-57 (F6-57) in March 2018. He

      was convicted and sentenced for that offense in May 2018.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020   Page 3 of 7
[8]    Following a two-day jury trial that commenced on February 25, 2020, Cutshall

       was found guilty of domestic battery resulting in serious bodily injury and

       domestic battery, and not guilty of aggravated battery. Cutshall admitted to

       being a habitual offender.


[9]    At the sentencing hearing on March 9, 2020, the State argued for an enhanced

       sentence based on Cutshall’s lengthy criminal history that consisted of four

       prior misdemeanor convictions—including a prior battery conviction—and

       twelve prior felony convictions. The State also noted that Cutshall was on

       parole in FB-49 when he committed the instant offenses.


[10]   At the conclusion of the hearing, the trial court stated as follows:


               As aggravators, I find, Mr. Cutshall, your criminal history and
               the fact that you were on parole at the time of this incident. As
               far as a mitigator, I do find that you were acting under
               provocation; however, I do find that the aggravators outweigh
               the mitigators in this case. I’ll show that Count 2 merges with
               Count 1. On Count 1, a Level 5 felony for Domestic Battery, I
               am going to sentence you to 5 years. None of that will be
               suspended to probation. On the Habitual Offender Enhancement,
               I will sentence you to an additional 5 years.


       Id. at 205.


[11]   That same day, the trial court issued a written sentencing order reiterating its

       findings at the earlier hearing. The written order further stated that Cutshall

       was to serve the sentence consecutively to the time received in F6-46 and F6-57.

       Thereafter, on March 19, 2020, the trial court issued an amended sentencing


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020   Page 4 of 7
       order. In addition to ordering Cutshall to serve the ten-year sentence

       consecutively to the sentences imposed in the above-mentioned causes, the trial

       court noted that Cutshall was “currently executing time under [Cause FB-49],

       and the sentence imposed herein shall be consecutive to that case.” Appellant’s

       Appendix at 143. Cutshall now appeals. 1


                                       Discussion and Decision

[12]   Sentencing decisions rest within the trial court’s sound discretion and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of

       discretion occurs if the trial court’s decision is “clearly against the logic and

       effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom.” Id. When a trial

       court sentences a defendant for a felony conviction, it must enter “a reasonably

       detailed recitation of the trial court’s reasons for imposing a particular

       sentence.” Id.


[13]   We further note that a trial court has discretion to impose consecutive sentences

       “even if the sentences are not imposed at the same time.” I.C. § 35-50-1-2(c).

       Hence, a trial court has the general authority to impose consecutive sentences




       1
         Cutshall acknowledges that pursuant to Ind. Code § 35-50-1-2(e), the trial court was required to order the
       sentence to run consecutively to that under Cause FB-49 because of the parole violation. Thus, Cutshall does
       not challenge that portion of the sentencing order.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020                   Page 5 of 7
       where the sentences stem from different cases in different courts. Berry v. State,

       689 N.E.2d 444, 446 (Ind. 1997). Moreover, a defendant has no right to serve

       “concurrent sentences for different crimes in the absence of a statute so

       providing.” Perry v. State, 921 N.E.2d 525, 527 (Ind. Ct. App. 2010).


[14]   Cutshall argues that the trial court abused its discretion in ordering consecutive

       sentences “without discussing its reasoning for doing so on the record at the

       sentencing hearing.” Appellant’s Brief at 4. Notwithstanding this claim, we note

       that a trial court may evidence its reasoning for imposing a sentence in either a

       written or oral statement, and “we may consider both when reviewing the

       sentence imposed.” See Zavala v. State, 138 N.E.3d 291, 299 (Ind. Ct. App.

       2019), trans. denied.


[15]   At the sentencing hearing, the trial court discussed and specifically identified

       Cutshall’s lengthy criminal history and the fact that he was on parole when he

       battered Welker as aggravating circumstances, thus stating its reason for

       imposing an enhanced sentence for Level 5 domestic battery. 2 Later that same

       day, the trial court’s detailed written sentencing statement reiterated its findings

       at the hearing and articulated its reasons for imposing the sentence. The

       written statement also specifically ordered Cutshall’s sentence to run

       consecutively to those imposed in F6-46 and F6-57.




       2
        The sentencing range for a Level 5 felony is from one to six years, with an advisory term of three years.
       Ind. Code § 35-50-2-6(b).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020                     Page 6 of 7
[16]   Contrary to Cutshall’s contention, it is immaterial that the trial court did not

       use the word “consecutive” at the sentencing hearing, because it advanced the

       reasons for doing so in the written order. See Zavala, 138 N.E.3d at 299. Thus,

       we reject Cutshall’s claim that this cause must be remanded for the trial court to

       further specify its justification for imposing consecutive sentences. See Blanche

       v. State, 690 N.E.2d 709, 716 (Ind. 1998) (holding that “there is neither any

       prohibition against relying on the same aggravating circumstances both to

       enhance a sentence and to order it served consecutively, nor any requirement

       that the trial court identify the factors that supported the sentence enhancement

       separately from the factors that supported consecutive sentences”); see also

       Moore v. State, 907 N.E.2d 179, 181 (Ind. Ct. App. 2009), trans. denied. We

       therefore conclude that the trial court did not abuse its discretion in ordering

       Cutshall’s sentence to run consecutively to the sentences in F6-46 and F6-57.


[17]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-776 | August 18, 2020   Page 7 of 7
