                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2073
                            Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYLER WARD SHIPLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James A.

McGlynn, Judge.



      A defendant appeals his conviction and sentence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

       Tyler Shipley engaged in a high-speed car chase with Marshalltown police

officers and a Marshall County deputy sheriff.            During the chase, Shipley

swerved and attempted to strike three of the pursuing vehicles.                 He was

eventually apprehended and charged with several crimes.

       Shipley entered Alford1 pleas to three counts of assault on a peace officer.

Iowa Code §§ 708.1 and 708.3A(1), (2) (2013). He also pled guilty to eluding

and operating a motor vehicle while intoxicated or drugged, third offense. Iowa

Code §§ 321.279(3)(b), 321J.2.              The district court sentenced him to

indeterminate five-year prison terms on each of the assault counts, to run

concurrently, and indeterminate five-year prison terms on the eluding and OWI

counts, to run consecutively to the assault terms, for a total indeterminate

sentence of fifteen years.

       On appeal, Shipley contends his plea attorney was ineffective in allowing

him to enter Alford pleas to three counts of assault on a peace officer because, in

his view, “the counts arise from one continuous transaction and should therefore

merge.” To prevail, he must establish (1) the failure to perform an essential duty

and (2) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

We find the record adequate to address the issue on direct appeal. See State v.

Gines, 844 N.W.2d 437, 440-42 (Iowa 2014) (deciding similar claim on direct

appeal).




1
 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”).
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          The Iowa Supreme Court recently articulated certain factors for

consideration in determining if a defendant’s assaultive conduct is one

continuous act or a series of separate and distinct acts:

          (1) the time interval occurring between the successive actions of
          the defendant, (2) the place of the actions, (3) the identity of the
          victims, (4) the existence of an intervening act, (5) the similarity of
          defendant’s actions, and (6) defendant’s intent at the time of his
          actions.

State v. Ross, 845 N.W.2d 692, 705 (Iowa 2014); see also Gines, 844 N.W.2d at

441 (discussing whether factual basis for guilty plea existed for three counts of

intimidation with a dangerous weapon where defendant fired a gun five times);

State v. Copenhaver, 844 N.W.2d 442, 449-50 (Iowa 2014) (applying the Ross

factors to find “two separate and distinct thefts”). The relevant factors support a

finding of three separate assaults.

          One assault count named Deputy John Hunter as the target. According to

the minutes of testimony, Hunter tried to pass Shipley and box him in. As he did

so, Shipley forced Hunter’s vehicle out of the way by either accelerating or

swerving. Hunter, in turn, accelerated to avoid being hit.

          A second assault count named Officer Eric Siemens as the target.

Siemens drove one of two police vehicles that pulled up on either side of

Shipley’s vehicle, again in an effort to box him in. Shipley swerved towards

Siemens’s vehicle, causing Siemens “to take to the shoulder and nearly enter a

ditch.”     When Siemens rejoined the chase, Shipley again swerved towards

Siemens’s car.

          The third assault count named Deputy Ben Veren as the target. He drove

parallel to Siemens on the driver’s side of Shipley’s vehicle. After Shipley forced
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Siemens’s vehicle off the road, he swerved toward Veren’s truck and struck the

side of the truck.

       Although all three acts occurred during a single car chase, each was

directed at a different vehicle and different officer and each was a discrete act.

We conclude Shipley’s attorney did not breach an essential duty in failing to

object to the entry of Alford pleas to three counts of assault.

       Shipley also contends the district court abused its discretion in imposing

consecutive sentences. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999)

(setting forth standard of review). We discern no abuse.

       According to the district court, the high-speed chase did not reflect “one

bad day out of an otherwise exemplary life,” but an overall attitude of flaunting

our laws. In the court’s view, Shipley’s criminal history, including a “lifetime [of]

OWI’s,” was emblematic of this attitude. Given his “repeat” convictions, and the

danger operating while intoxicated posed to the public, the court stated, “I don’t

think it’s helpful for your rehabilitation to just wave that off.” The court similarly

declined to “wave [] off” the eluding conviction, when Shipley “shouldn’t have

been driving at all.” The court admonished Shipley, “I think that you really do

need to recognize that these rules are there to protect the society as a whole and

that you are subject to them and so I’m not willing to just suspend [the sentences]

or run those concurrent with the other ones.” These statements amply supported

the court’s decision to have the OWI and eluding convictions run consecutively to

the assault convictions.

       We affirm Shipley’s judgment and sentences.

       AFFIRMED.
