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
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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