State v. Otis Armstrong

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER 1999 SESSION

STATE OF TENNESSEE, FILED * No. W1999-02068-CCA-R3-CD

Appellee * SHELBY COUNTY December 29, 1999 V. * Hon. Carolyn Wade Blackett, Judge Cecil Crowson, Jr. OTIS L. ARMSTRONG Appellate* Court(Aggravated Robbery) Clerk

Appellant. * For Appellant For Appellee

Gerald S. Green Paul G. Summers 147 Jefferson Avenue, Suite 404 Attorney General and Reporter Memphis, TN 38103 425 Fifth Avenue North Nashville, TN 37243-0493

Patricia C. Kussmann Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUDGE

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OPINION

On February 3, 1999, the appellant, Otis L. Armstrong, pled guilty in

the Shelby County Criminal Court to aggravated robbery, a class B felony. Tenn. Code Ann. § 39-13-402(b) (1997). The appellant pled guilty in return for the State’s

recommendation to the trial court that he receive a sentence of eight years

incarceration in the Tennessee Department of Correction as a standard, Range I offender. Moreover, the parties agreed that the trial court would determine whether

the appellant’s sentence should be suspended. Following a sentencing hearing, the

trial court accepted the State’s recommendation of an eight year sentence and further observed that the Criminal Sentencing Reform Act of 1989 does not

authorize probation in the appellant’s case. On appeal, the appellant challenges the

constitutionality of that provision of the Sentencing Act prohibiting a probationary sentence in all cases of aggravated robbery. See Tenn. Code Ann. § 40-35-

303(a)(1997). Following a review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Citing, among other cases, Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978 (1976), the appellant argues that Tenn. Code Ann. § 40-35-303(a)

violates the United States and Tennessee constitutions in light of the statute’s failure

to afford the trial court discretion in granting or denying a sentence of probation. However, in a noncapital context, there exists no federal constitutional right to an

individualized sentencing determination. Harmelin v. Michigan, 501 U.S. 957, 995-

996, 111 S. Ct. 2680, 2702 (1991). See also, e.g., United States v. Walls, 70 F.3d 1323, 1331 (D.C. Cir. 1995); United States v. Capusano, 947 F.2d 1, 3 (1st Cir.

1991); United States v. Gardner, 931 F.2d 1097, 1099 (6 th Cir. 1991); United States v. Prior, 107 F.3d 654, 658 (8 th Cir. 1996); Scrivner v. Tansy, 68 F.3d 1234, 1240

(10th Cir. 1995). Moreover, the appellant cites no authority for the proposition that the Tennessee Constitution requires more. In short, the appellant’s argument is

without merit.

Accordingly, we affirm the judgment of the trial court.

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Norma McGee Ogle, Judge CONCUR:

John H. Peay, Judge Alan E. Glenn, Judge