Rocky Allen McCracken v The State Of Oklahoma

RE 2008-411

Filed: Apr. 17, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rocky Allen McCracken appealed his conviction for Unlawful Delivery of Controlled Dangerous Substance (Methamphetamine). His conviction and sentence were modified to time served. Judge Chapel dissented.

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.

Issues

• Was the total revocation of Appellant's suspended sentence excessive considering the facts and circumstances of the case?
• Did the Appellant present sufficient evidence to support a modification of his sentence?

Findings

• The court erred in completely revoking the suspended sentence.
• The modification of the sentence to time served is appropriate given the facts and circumstances of the case.

RE 2008-411

Apr. 17, 2009

Rocky Allen McCracken

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, Judge:

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.

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.

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Footnotes:

1. Okla. Stat. tit. 22 § 18.
2. Okla. Stat. tit. 22 § 15.
3. Middaugh v. State, 1988 OK CR 295, 120, 767 P.2d 432.
4. Rea v. State, 2001 OK CR 28, 34 P.3d 148.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing of convicted defendant
• Okla. Stat. tit. 22 § 984 (2011) - Authority of the court to revoke probation

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Middaugh v. State, 1988 OK CR 295, 120, 767 P.2d 432
• Rea v. State, 2001 OK CR 28, 34 P.3d 148