Court of Appeals of Indiana | Memorandum Decision 18A04-1512-CR-2270 | July 29, 2016 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.

ATTORNEY FOR APPELLANT

Michael P. Quirk

Muncie, Indiana

ATTORNEYS FOR APPELLEE

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 Case 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 | July 29, 2016 Page 2 of 6

Case Summary

[1] Lance M. McGee (“McGee”) entered into a written plea agreement in which he 

pled guilty to Dealing Cocaine as a Class B felony,1 and was sentenced to eight 

years, six years executed in the Department of Correction (“DOC”), and two 

years suspended to probation. McGee appeals his placement within the DOC

and the length of his sentence. We 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 charges were 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 charge 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 Penalty 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 | July 29, 2016 Page 3 of 6

were 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 

sentence, 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, 2015.

[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 sentencing 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 the 

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 court could place him in the DOC. (Tr. at 19) McGee argued 
Court of Appeals of Indiana | Memorandum Decision 18A04-1512-CR-2270 | July 29, 2016 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 court 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 electronic 

home detention over the length of McGee’s sentence. (Tr. at 28) For these 

reasons, 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 law supports that even if the court had considered these dismissed 
Court of Appeals of Indiana | Memorandum Decision 18A04-1512-CR-2270 | July 29, 2016 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 the 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 discretion 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 sentence “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 application 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 | July 29, 2016 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. Furthermore, 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 

duration 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.