State v. Otis Armstrong

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
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
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