                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1494
                               Filed November 21, 2018


MONTEZ D. SHORTRIDGE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Montez Shortridge appeals from the district court’s denial of his application

for postconviction relief. AFFIRMED.




      Erin M. Carr of Carr & Wright, PLC, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       In 1996, a jury found Montez Shortridge guilty of first-degree murder in

connection with the death of a Des Moines man. This court affirmed his judgment

and sentence, as well as the denial of his first application for postconviction relief.

See Shortridge v. State, No. 01-0199, 2004 WL 574617, at *4–8 (Iowa Ct. App.

Mar. 24, 2004); State v. Shortridge, 589 N.W.2d 76, 79–80 (Iowa Ct. App. 1998).

Shortridge filed a second postconviction-relief application, which was stayed

pending resolution of the first application and subsequently languished for more

than a decade. The district court eventually denied the application following an

evidentiary hearing.

       Shortridge now appeals the district court’s resolution of the second

postconviction-relief application.      He contends (1) the State suppressed

exculpatory evidence and (2) he is “entitled to an ex parte hearing for the

appointment of an expert.”

I.     Suppression of Exculpatory Evidence

       In his second postconviction-relief application, Shortridge asserted the

State failed to disclose information relating to State witness Jheri Hatten, who lived

in Iowa for a short period before moving to California.1 Specifically, he alleged, (1)



1 This court summarized her trial testimony as follows. Hatten “lived with Shortridge and
worked for him as a prostitute at the time of the murder.” Shortridge, 589 N.W.2d at 79.
Shortridge “bailed [Hatten] out of jail.” Id.
        When he bailed her out she noticed he had a cellular phone and a lot of
        money. After they arrived at their apartment, she discovered a bag of dark,
        dirty clothing which she described as smelling dirty or like spoiled meat.
        While watching a day-time television news broadcast with Shortridge, [the]
        picture [of the man who was killed] appeared. Shortridge told Hatten, “he
        didn’t look like that when I was through with him.”
Id.
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“Hatten was on probation out of Woodbury County for a fourth-degree theft

conviction entered on June 28, 1994,”2 (2) a warrant was issued for her arrest, (3)

the State made arrangements to fly Hatten “back from California to be interviewed

by [a] homicide investigator,” (4) the State “obtained a transfer of a probation

violation involving Hatten from Woodbury County to Polk County,” (5) “on the same

day she returned” for the interview, the State “held a [probation] revocation

hearing” in Polk County, and (6) the State “made a “favorable recommendation” in

the probation revocation hearing, which was not disclosed to the defense.

       The postconviction court concluded the favorable recommendation “was not

suppressed because the information could have been discovered by defense

counsel.” The court provided the following reasoning:

       Defense attorneys knew that Ms. Hatten was on probation at the time
       of the murder, and in fact, their alibi defense was partially based on
       the timing of applicant bonding her out of jail. They likewise knew
       that she had left Iowa for California in September of 1994 . . . . They
       knew that she returned to Iowa in February of 1995 to provide a
       statement to prosecutors. The probation violation hearing was
       conducted on the record and the court filed an order accordingly.
       Any review of the file would have revealed that a hearing was held,
       which could have led to further investigation. The State made Ms.
       Hatten available for deposition on three occasions after the murder
       charge was filed. While defense counsel did not know the
       circumstances of the probation violation hearing, they at least had
       the grounds and opportunity to inquire into any resolution of her
       pending probation matter.

The court also concluded “the information was not material.”

       On appeal, Shortridge acknowledges “defense counsel would have been

aware of Ms. Hatten’s being on probation.” He also acknowledges his attorneys



2
  At the probation revocation hearing, Hatten stated the offense for which she was on
probation was “[f]elony forgery and prostitution.”
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arguably “could have uncovered the arguments made at Ms. Hatten’s probation

violation hearing.”   But he asserts his attorneys “were not privy to . . . the

circumstances bringing her back to Iowa to take care of that.” In his view, those

circumstances could have been used to impeach Hatten at trial.

       “[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady

v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Shortridge

must prove by a preponderance of the evidence “(1) the prosecution suppressed

evidence; (2) the evidence was favorable to the defendant; and (3) the evidence

was material to the issue of guilt.” Moon v. State, 911 N.W.2d 137, 145 (Iowa

2018) (quoting DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011)). We begin

and end with the first prong: whether the evidence was suppressed.

       “Evidence is suppressed when information is discovered after trial which

had been known to the prosecution but unknown to the defense.” Harrington v.

State, 659 N.W.2d 509, 522 (Iowa 2003) (quoting Cornell v. State, 430 N.W.2d

384, 385 (Iowa 1988)). “‘[I]f the defendant either knew or should have known of

the essential facts permitting him to take advantage of the evidence,’ the evidence

is not considered ‘suppressed.’”       DeSimone, 803 N.W.2d at 103 (quoting

Harrington, 659 N.W.2d at 522).

       Shortridge’s attorneys conceded they had access to police reports before

trial. One of the reports prepared by the officer who interviewed Hatten on her

return from California stated:
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               On 24 Feb. 95 at 0930 hours this officer met with Jheri Hatten
       at the DM Airport as she had returned back from CA to meet with us
       reference this case. This officer escorted Ms. Hatten down to my
       office at the [Des Moines Police Department] where in room 317E in
       the Crimes Against Persons Section she was interviewed reference
       this case by myself.

The report would have apprised the attorneys of Hatten’s return to Iowa.

       Shortridge points out that the report omitted reference to the State’s

payment of Hatten’s travel expenses. In his view, his attorneys were entitled to

know of this benefit she received from the State, a benefit that could have been

used to impeach her at trial. But Shortridge had ample opportunity to glean this

information before trial. And, in any event, one of Shortridge’s attorneys testified

by deposition that he probably would not have questioned Hatten about a promise

to pay those expenses. In his words, “I mean, if they want to fly her in to interview

her, they’re not going to put that on her dime, anyway.”

       Shortridge’s attorneys also had access to the transcription and videotape of

the police interview of Hatten. At the conclusion of the interview, the officer asked

Hatten whether her statement was “given freely and voluntarily and without any

threats or promises” and whether it was “true to the best of [her] knowledge.”

Hatten responded, “Yes.” Again, Shortridge’s attorneys could have questioned

Hatten about the veracity of this statement in one of the four pretrial depositions

they conducted. In any event, those depositions of Hatten gave the defense

everything they needed concerning the State’s favorable recommendation at

Hatten’s probation revocation hearing.

       In her first deposition, Hatten acknowledged she was arrested for forgery

in Sioux City, Iowa, pled guilty to the charge, and received “alternate sentencing.”
                                            6


At this juncture, then, defense counsel knew the conviction emanated from

Woodbury County.

       In the second deposition, Hatten discussed convictions for prostitution and

forgery and stated an arrest warrant was out for not reporting to her probation

officer. Although the warrant differed from the one pending when the probation

revocation hearing was held, the underlying convictions were the same. Critically,

Shortridge’s attorney asked Hatten, “Were those both, prostitution and forgery,

from Polk County?” Hatten responded, “Yes. No. Actually, they were from Sioux

City.” She also named her probation officer. The same officer spoke to the Polk

County district court at Hatten’s probation revocation hearing and recommended

revocation of Hatten’s probation.

       Towards the end of the second deposition, Shortridge’s attorney again

asked Hatten to name the county from which her probation for forgery issued. She

responded, “Sioux City.” He repeated, “And that was from, you said, Sioux City?”

Hatten responded, “Correct.”        Counsel followed up with, “Was that probation

transferred to Polk County?” Hatten responded, “Yes, it was.”

       In sum, defense counsel confirmed that both convictions underlying the

probation revocation proceeding arose in Woodbury County, learned the identity

of Hatten’s probation officer from whom he could have obtained additional

information about her status, and determined that the probation proceeding was

transferred to Polk County. The second deposition was taken more than a year

before trial.3


3
 Also admitted as an exhibit in the postconviction-relief hearing is a “victim packet” with
handwritten comments stating a judge in Woodbury County had “no problem with” having
                                           7


         Two additional depositions followed. Counsel did not pursue the probation

revocation issue in those depositions.

         We conclude Shortridge knew before trial “the essential facts permitting him

to take advantage of the evidence.” DeSimone, 803 N.W.2d at 103 (quoting

Harrington, 659 N.W.2d at 522). We further conclude the evidence was not

suppressed. We affirm the district court’s denial of postconviction relief on this

claim.

II.      Ex-Parte Hearing-Expert

         During the postconviction proceedings, Shortridge filed a motion for

appointment of substitute counsel and stay of proceedings. When the court asked

him about the motion, Shortridge mentioned several Iowa Supreme Court opinions,

including State v. Dahl, 874 N.W.2d 348, 353 (Iowa 2016). He stated:

         I mean, my concern is this. In Dahl, the Iowa Supreme Court just
         ruled on January 22nd of this year that any time you’re discussing
         strategic matters or you’re asking for funds or any type of assistance
         from the Court dealing with your defense, that that matter needs to
         be dealt with ex parte.

See Dahl, 874 N.W.2d at 353 (exercising “supervisory powers . . . to articulate a

protocol to balance the statutory right of an indigent defendant to the appointment

of a private investigator under section 815.7 against his or her burden to present

sufficient information to the trial court to support the granting of an application for

appointment of a private investigator at state expense,” and holding, “When a trial

court deems an indigent defendant’s application for appointment of a private

investigator may have some merit but does not contain adequate information for



a judge in Polk County handle the probation revocation hearing. It is unclear whether
Shortridge’s attorneys had this document before trial.
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the court to determine whether it should grant the application, the court should hold

an ex parte hearing before ruling on the merits of the application”).

       The postconviction court addressed Shortridge’s reference to Dahl as

follows:

              The issue in Dahl was whether a criminal defendant could
       make an ex parte request to the court to appoint a private investigator
       at state expense. The court held that the request could be
       considered ex parte to avoid revealing trial strategy. However, Dahl
       is not analogous. This is not a criminal case, but a post-conviction
       case reviewing aspects of the criminal case that is already complete.
       The burden of proof and elements to be proved are different. See
       State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011). There was no
       concern with petitioner revealing trial strategy. Accordingly, there
       was no right to an ex parte hearing.

       We discern no error in this reasoning. Dahl was premised on Iowa Code

section 815.7 (2013), which authorizes the payment of expenses for indigent

defense in criminal matters. Id. at 351. In construing the provision, the court cited

the State’s obligation under the Sixth Amendment to the United States Constitution

“to pay for reasonably necessary defense services for which indigent defendants

demonstrate a need in order to ensure such defendants receive effective

assistance of counsel.” Id. at 351–52. The Sixth Amendment right to counsel does

not apply in postconviction cases. See Coleman v. Thompson, 501 U.S. 722, 752

(1991) (“There is no constitutional right to an attorney in state post-conviction

proceedings”); but cf. Goode v. State, ___ N.W.2d ___, ___, 2018 WL 6004877,

at *4 (Iowa 2018) (declining to reject a claim of ineffective assistance of

postconviction counsel solely on the basis that it was framed as a constitutional

right, noting, “The source of the claim . . . was not an issue on appeal, and the

State was not disadvantaged in any way by the manner in which Goode elected to
                                        9


frame his issue”). Accordingly, we conclude the postconviction court did not err in

denying Shortridge’s motion.

       We affirm the district court’s denial of Shortridge’s second postconviction-

relief application and motion.

       AFFIRMED.
