           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.


                                           2
                           Norma McGee Ogle, Judge
CONCUR:



John H. Peay, Judge



Alan E. Glenn, Judge




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