MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Jul 29 2016, 9:44 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. Quirk                                         Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lance M. McGee,                                          July 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1512-CR-2270
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff                                       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 1 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 2 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 3 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 4 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 5 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.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1512-CR-2270 | July 29, 2016   Page 6 of 6
