Court of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 1 of 6



### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.



### A TTORNEY FOR 

### A PPELLANT Michael P. Quirk Muncie, Indiana 

### A TTORNEY S FOR 

### A PPELLEE Gregory F. Zoeller Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Lance M. McGee , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff July 29, 2016 Court of Appeals Ca se No. 18A04

- 1512

- CR

- 2270 Appeal from the Delaware Circuit Court The Honorable Marianne L. Vorhees, Judge Trial Court Cause No. 18C01

- 1304

- FA

- 8



### Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 2 of 6 

# Case Summary

[1] 

### Lance M. McGee (“McGee”) entered into a written plea agreement in which he pled guilty to D ealing C ocaine as a Class B f elony, 1 

### and was sentenced to eight years, six years executed in the Department of Correction (“DOC”), and two years suspended to probation. McGee appeal s his placement within the DOC and the length of his sentence

. W e affirm.



# Facts and Procedural History

[2] 

### On August 8 and 13, 2012, McGee knowingly delivered cocaine in various amounts to two residential areas in Muncie. (App. 20

- 24) On April 1, 2013, McGee was arrested . On April 8, 2013 , he was charged with two counts of Dealing Cocaine as Class A felonies, 2 

### one count of Possession of Cocaine as a Class B felony, 3 

### and one count of Possession of Marijuana, a Class A misdemeanor. 4

[3] 

### On February 9, 2015, McGee pled guilty to Dealing Cocaine as a Class B felony pursuant to a plea agreement. The other three charge s we re dropped , as

1 Ind. Code § 35

- 48

- 4

- 1(a). We refer at all times to the version of the statutes in effect at the time of McGee’s offense. Under the current version of this statute, this offense is considered a Level 5 felony.

2 I.C. § 35

- 48

- 4

- 1(a)(1) & (b)(3). The char ge was raised to a Class A felony because McGee allegedly delivered cocaine within 1000 feet of a family housing complex.
3 I.C. § 35

- 48

- 4

- 6(a) and (b)(2).

4 I.C. § 35

- 48

- 4

- 11(1). The prosecutor’s office also filed a Notice of Intent to Seek Enhanced Pe nalty Based upon Prior Conviction, based upon a prior conviction for possession of marijuana, which would have elevated this charge to a Class D felony.Court of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 3 of 6



### we re all charges under Cause No. 18C01

- 1304

- FD

- 83. (App. at 122) After being advised of his rights in court , McGee agreed to an eight year sentence, six years executed, and two years suspended. (App. at 123) The placement of the

sent ence, however, was left to be argued before the court. (App. at 23) Upon McGee’s plea, the court took the plea agreement under advisement pending a
Pre

- Sentence Investigation (“PSI”). (Tr. at 8) McGee’s sentencing hearing was scheduled for March 30, 20 15.

[4] 

### McGee failed to report to the probation officer for his PSI interview, scheduled for March 10, 2015

. (App. at 113) McGee also failed to appear at his sentencing hearing. On April 14, 2015 , the court issued a warrant for McGee’s arrest for failure to appear. (App. at 114) McGee was arrested on October 7,
2015.

[5] 

### On November 23, 2015, the court held McGee’s sentencing hearing. When he was questioned about why he missed the hearing, McGee stated he was scheduled for an initial hearing in the same court on the same day for a new case. (Tr. at 25) McGee stated he failed to appear at the sen tencing hearing because he was afraid his bond would be revoked. (Tr. at 25) Also, the court was advised by counsel and McGee that they had no comments to add to th e PSI report. (Tr. at 12) The court clarified that the issue before the court was the placement of the sentence , as the plea agreement specifically defined the length of the sentence to be imposed. (Tr. at 22, 28) McGee affirmed that he knew that the c ourt could place him in the DOC. (Tr. at 19) McGee arguedCourt of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 4 of 6



### that he was a good candidate for electronic home detention, while the prosecution argued for placement in the DOC.

[6] 

### The court found a number of aggravating factors. McGee was arrested after being released from jail on bond. (Tr. at 24) McGee failed to appear for his scheduled sentencing hearing, causing the court to issue a warrant. (Tr. at 24, 27, 28) Furthermore, the court found McGee had been adjudicated to be a juvenile delinquent, and had an lengthy adult criminal record, including convictions for Battery, Battery Resulting in Bodily Injury, and Possession of Marijuana, among others, as aggravating factors. As a mitigating factor, the court acknowledged his guilty plea. (Tr. at 27) The c ourt gave no weight to McGee’s claim that he was addicted to pain medication and desired treatment, reasoning that McGee could have sought out treatment when he was out of jail on bond. (Tr. at 27) Furthermore, the court noted the great cost of electroni c home detention over the length of McGee’s sentence. (Tr. at 28) For these

reason s, the court determined McGee’s sentence would be better served in the DOC, and sentenced him accordingly. This appeal followed.



# Discussion and Decision

[7] 

### At the outset, we acknowledge that McGee draws attention to both the placement and the length of his sentence. 5 

### “Only if a trial court is exercising

5 McGee also asserts that the court improperly considered charges in the PSI report for which McGee was not convicted; however, the court does not state that the charges were considered an aggravating factor in the sentencing statement. Furthermore, case l aw supports that even if the court had considered these dismissedCourt of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 5 of 6



### discretion in imposing a sentence may a defendant then contest on appeal the merits of that discretion on the grounds that t he sentence is inappropriate in light of the nature of the offense and the character of the offender.” Hole v.
State , 851 N.E.2d 302, 304 (Ind. 2006). When a trial court accepts a plea agreement that calls for a specific term of years, “it has no discret ion to impose anything other than the precise sentence upon which [the parties] agreed.” Id. (quoting Childress v. State , 848 N.E.2d 1073, 1078

- 79 (Ind. 2006) )

. The plea agreement in this case, once accepted, required the trial court to sentence
McGee to an eight year sentence, with six years executed and two years suspended to supervised probation. The agreement left only McGee’s placement to the discretion of the court , which is what we now consider.

[8] 

### Under Indiana Appellate Rule 7(B), we may revise a s entence “if, after due consideration of the trial court’s decision,” we find the sentence “inappropriate in light of the nature of the offense and the character of the offender.” Review of the location where a sentence is to be served is an appropriate ap plication of our authority under Appellate Rule 7(B). Biddinger v. State , 868 N.E.2d 407, 414 (Ind. 2007); King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). However, such review is highly deferential to the trial court. Conly v. State , 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied . A defendant challenging the placement of a sentence must convince us that the placement is itself

charges, it would have been within the court ’ s discretion to do so if not explicitly prohibited in the plea agreement. Bethea v. State , 983 N.E.2d 1134, 1144 (Ind. 2013).Court of Appeals of Indiana | Memorandum Decision 18A04

- 1512

- CR

- 2270 | J u l y 2 9 , 2 0 1 6 Page 6 of 6



### inappropriate, not whether another placement is more appropriate. Fonner v.
State , 876 N.E.2d 340, 344 (Ind . Ct. App. 2007). As a practical matter, trial courts know the feasibility of alternative placements, such as electronic home detention. King , 894 N.E.2d at 268.

[9] 

### McGee asserts that the trial court inappropriately ordered his sentence to be served in the DOC instead of electronic home detention; however, a review of the record leads us to a different conclusion. McGee failed to appear for his initial sentencing hearing, the “critical issue” in his placement determination, as described by the trial court. (Tr. at 25) Furthermore, McGee’s juvenile adjudications and criminal history were aggravating factors. McGee also was arrested for a new offense while released on bond in the present case. The court found one mitigating factor: McGee’s guilty plea. Fu rthermore, the court stated that McGee’s addiction to pain medication was not a mitigating factor, as McGee had opportunity to seek treatment while he was released on bond. The court also noted the significant cost of electronic home detention for the dur ation of McGee’ s sentence. McGee advanced other factors, such as his readiness for electronic home detention, without citing authority that would compel the trial court to consider such factors in mitigation. Because we conclude that McGee’s placement in the DOC was not inappropriate , we affirm

.

[10] 

### Affirmed.

Riley, J., and Barnes, J., concur.