State of Louisiana v. Anthony A. Tapp

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 08-1262

STATE OF LOUISIANA

VERSUS

ANTHONY A. TAPP

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 06K3102A
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED IN PART AND REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
Counsel for Defendant/Appellant:
Anthony A. Tapp

Earl B. Taylor
District Attorney, 27th J.D.C.
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-3041
Counsel for Plaintiff/Appellee:
State of Louisiana

Jennifer Ardoin
Assistant District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
Counsel for Plaintiff/Appellee:
State of Louisiana

GREMILLION, Judge.

The Defendant, Anthony A. Tapp, was charged by bill of information filed on

August 10, 2006, as a principal to armed robbery, a violation of La.R.S. 14:64 and

14:24. He entered a not guilty plea on September 1, 2006.

Counsel for Defendant filed a number of motions, including a motion to

suppress. In a joint stipulation, the parties acknowledged satisfaction of all motions,

excluding the motion to suppress. The motion to suppress sought exclusion of any

statements made by Defendant while in custody, and suppression of any evidence

obtained via police lineup. The trial court denied the motion to suppress on

September 28, 2006, stating: “Motion fails to allege facts as required by L. Cr. P. Art.

703(E)(1)for evidentiary hearing. (See State v. Washington, 727 So.2d 673).”

Trial commenced on January 9, 2008, with jury selection, but was continued

on the merits until January 31, 2008. Defendant was found guilty of armed robbery

by the jury on January 31, 2008. On July 3, 2008, the court sentenced Defendant to

twenty years at hard labor, without the benefit of parole, probation, or suspension of

sentence. An oral motion to appeal was granted.

Defendant filed a motion to reconsider sentence on July 14, 2008, which was

denied on August 1, 2008. Defendant now assigns as error: (1) the trial court’s denial

of the motion to suppress; and (2) alternatively, that counsel was ineffective in failing

to allege necessary facts in support of the motion to suppress which would have

required a hearing on the motion. We note that we have reviewed the record and find

no errors patent. We move, then, to the assignments of error.

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MOTION TO SUPPRESS

Defendant argues that State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727

So.2d 673, does not support the trial court’s denial of an evidentiary hearing on the

motion to suppress.

Louisiana Code of Criminal Procedure Article 703(E)(1) provides:

An evidentiary hearing on a motion to suppress shall be held only
when the defendant alleges facts that would require the granting of
relief. The state may file an answer to the motion. The defendant may
testify in support of a motion to suppress without being subject to
examination on other matters. The defendant’s testimony cannot be
used by the state except for the purpose of attacking the credibility of
the defendant’s testimony at the trial on the merits.

Defendant acknowledges application of this article and the requirement of

allegations of fact in support thereof; however, he argues that the facts in Washington,

were improperly applied by the trial court. His argument is that a motion to suppress

was set for hearing in that case, and that the defense counsel waived the hearing after

accepting the state’s argument that no motion to suppress was applicable. He urges

that the court failed to give him an opportunity to waive the hearing.

In Washington, the court stated:

We believe that defendant waived his right to have the motion to
suppress considered. First, defendant did not allege facts in his motion
to suppress as required by La.C.Cr.P. art. 703 E. Second, defendant
indicated at the hearing that he was satisfied with the state’s response to
his motion to suppress. Finally, defendant proceeded to trial without
raising any issue that he had an outstanding motion to suppress. State
v. Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258.
Accordingly, we find no merit to defendant’s first assignment of error.

Washington, 727 So.2d at 676.

Defendant does not argue that the facts alleged in the motion to suppress were

sufficient to mandate a hearing pursuant to La.Code Crim.P. art. 703(E)(1), although

he asserts that such facts existed. The motion only asserted:

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1. Defendant is charged with the offense of Armed Robbery[;]

2. The Defendant further alleges that he anticipates that any statements
he has made while in Police custody will be offered as evidence against
him at any trial[;]

3. Defendant further alleges that he anticipates that any evidence as a
result of a Police Lineup will be offered as evidence against him at any
trial.

Louisiana Code of Criminal Procedure Article 703 provides that a party may

move for suppression of evidence on the ground that it was unconstitutionally

obtained, and may move to suppress any statement made by him on any constitutional

ground. The motion to suppress did not allege any constitutional issues, and a

hearing was, therefore, not required. This assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next asserts ineffective assistance of counsel due to counsel’s failure

to urge sufficient facts in the motion to suppress to require a hearing. In State v.

Smith, 07-468, pp. 8-9 (La.App. 3 Cir. 10/31/07), 969 So.2d 694, 700, writ denied,

07-2484 (La. 5/16/08), 980 So.2d 707, this court stated:

This court considered a similar issue in State v. Prudhomme, 02-511, p.
16 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied,
02-3230 (La. 10/10/03), 855 So.2d 324, stating:

Failure to file a motion to reconsider the sentence
does not necessarily constitute ineffective assistance of
counsel. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99);
734 So.2d 854. Nevertheless, the defendant may have a
basis to claim ineffective assistance of counsel when he
can show a reasonable probability, but for defense
counsel’s error, his sentence would have been different. Id.
Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir.
10/6/99); 748 So.2d 484, writ denied, 00-0544 (La.
11/13/00); 773 So.2d 156, this court stated:

A claim of ineffective assistance of counsel is
properly raised in an application for post conviction relief.
This allows the trial judge an opportunity to order a full

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evidentiary hearing on the matter. State v. Burkhalter, 428
So.2d 449 (La.1983). However, where the record contains
evidence sufficient to decide the issue and the issue is
raised by an assignment of error on appeal, it may be
considered. State v. James, 95-962 (La.App. 3 Cir.
2/14/96); 670 So.2d 461.

The court in Smith, 969 So.2d at 703, favorably cited State v. Smith, 06-820

(La.App. 1 Cir. 12/28/06), 952 So.2d 1, writ denied, 07-211 (La. 9/28/07), 964 So.2d

352. In that case, the court stated:

But the particular allegations of ineffective assistance of counsel
alleged by the defendant herein cannot be sufficiently investigated from
the inspection of the record alone. Each of these allegations (failure to
object to the jury’s review of written evidence during deliberations,
failure to present evidence of the effects of alcohol or evidence of
impairment, and the failure to object to jury instructions) may involve
matters of trial preparation or strategy. It is well settled that decisions
relating to investigation, preparation, and strategy require an evidentiary
hearing and cannot possibly be reviewed on appeal. See State v. Martin,
607 So.2d 775, 788 (La.App. 1st Cir. 1992). Only in an evidentiary
hearing in the district court, where the defendant could present evidence
beyond that contained in the instant record, could these allegations be
sufficiently investigated. Accordingly, these allegations are not subject
to appellate review. See State v. Albert, 96-1991, p. 11 (La.App. 1st Cir.
6/20/97), 697 So.2d 1355, 1364.

Id. at 12 (footnote omitted).

We find that this assignment of error cannot be addressed on appeal and should

be resolved in post-conviction proceedings. The only facts contained in the record,

applicable to this issue, are that counsel did not allege sufficient facts to be entitled

to a hearing, nor did she amend her motion to meet the statutory requirements.

The facts before us do not allow for a determination as to why counsel acted

in this manner. It is possible that she felt that there were no facts which would

support constitutional allegations which required a hearing, or was concerned that

damaging facts might become known to the prosecution if the hearing took place. Of

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course, proper proceedings could also demonstrate that counsel had no good reason

for her omission. We simply cannot know based on the record before us.

INSTRUCTIONS FOR THE TRIAL COURT

At the sentencing hearing, the trial court stated, in pertinent part: “This is a

crime of violence; however, his sentence has not been enhanced. He may be entitled

to diminution of sentence under the provisions of 15, Section 571.3. . . .” However,

the minutes of sentencing reflect, in pertinent part: “The sentence was not enhanced.

The defendant was allowed diminution of sentence.” Thus, we order the trial court

to amend the minutes of sentencing to accurately reflect the sentencing transcript.

CONCLUSION

The first assignment of error is without merit. The second assignment of error

cannot be resolved on the record before the court and should be addressed in post-

conviction proceedings.

AFFIRMED IN PART AND REMANDED FOR PROCEEDINGS

CONSISTENT WITH THIS OPINION.

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