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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA ROCKY ALLEN MCCRACKEN, ) ) NOT FOR PUBLICATION Appellant, V. ) No. RE 2008-411 THE STATE OF OKLAHOMA, ) Appellee. ) FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA APR 17 2009 SUMMARY OPINION MICHAEL S. RICHIE LEWIS, Judge: CLERK Appellant, Rocky Allen McCracken, entered a plea of nolo contendere July 11, 1997, in Pottawatomie County District Court Case No. CF-1997-179 to Unlawful Delivery of Controlled Dangerous Substance (Methamphetamine). He was given a five year suspended sentence and fined $1,000.00. On October 21, 1998, the State filed an application to revoke Appellant’s suspended sentence alleging Appellant (1) failed to report, (2) failed to pay court costs, (3) failed to pay probationary fees, (4) failed to perform 100 hours of community service as ordered, (5) failed to enroll and/or successfully complete Gateway as ordered, and (6) failed to receive permission from Probation and Parole prior to changing his residence as ordered. Appellant stipulated to the State’s allegations at a revocation hearing held April 16, 2008. The Honorable Douglas L. Combs revoked Appellant’s five year suspended sentence in full. On appeal Appellant argues that under the facts and circumstances of this case, the total revocation was excessive and seeks modification of his sentence. Appellant testified that in 1997 he was using drugs and did not care about himself or anybody else. He became drug free in 1999 by leaving Oklahoma and all of his associates for family in Pennsylvania. He kicked his methamphetamine habit, worked full time and was drug free during his stay in Pennsylvania. The record reflects he voluntarily returned to Oklahoma in late 2007 where his daughter and grandchildren live, found employment and arranged to surrender. He states that he now has family support in Oklahoma, has stayed drug free, has not been arrested since 1997, has made all of his court appearances and made an agreement to pay court costs and that he has abided by that agreement. Appellant’s testimony is supported by witnesses called on his behalf and supporting documentation admitted into evidence. In Middaugh v. State, 1988 OK CR 295, 120, 767 P.2d 432, we held upon review we must look at the facts and circumstances of each case to determine whether a sentence is excessive. We will not modify a sentence unless the facts and circumstances show that the sentence is so excessive that it shocks the conscience of this Court. See Rea v. State, 2001 OK CR 28, 34 P.3d 148. Considering the facts and circumstances of this case we find the revocation of five years excessive and modify the sentence to time served. 2 DECISION The revocation of Appellant’s suspended sentence in Pottawatomie County District Court Case No. CF-1997-179 is AFFIRMED but Appellant’s five year sentence is MODIFIED TO TIME SERVED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the filing of this decision. REVOCATION APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, THE HONORABLE DOUGLAS L. COMBS, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL CHRIS EULBERG BILL J. BAZE Attorney at Law Appellate Defense Counsel 925 N. W. 6th Street P.O. Box 926 Oklahoma City, OK 73106 Norman, OK 73070 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT RUSS COCHRAN W.A. DREW EDMONDSON First Assistant District Attorney Attorney General of Oklahoma 331 North Broadway JENNIFER B. MILLER Carnegie Building Assistant Attorney General Shawnee, OK 74801 313 N.W. 21st Street COUNSEL FOR THE STATE Oklahoma City, OK 73105 COUNSEL FOR THE STATE OPINION BY: LEWIS, J. C. JOHNSON, P.J.: Concur A. JOHNSON, V.P.J.: Concur LUMPKIN, J.: Concur in Results CHAPEL, J.: Concur in Results 3

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