                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1839
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRELL C. JOHNSON,
     Defendant-Appellant.
________________________________________________________________
     Appeal from the Iowa District Court for Polk County, Michael D. Huppert

(sentencing), Christopher L. McDonald (motion to correct illegal sentence), and

Douglas F. Staskal (motion for more specific ruling), Judges.



       Darrell Johnson appeals following the denial of his motion to correct illegal

sentences imposed upon his pleas of guilty to three counts of willful injury

causing serious injury and two counts of assault on a police officer with a

dangerous weapon. AFFIRMED.



       Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jeffrey Noble, Assistant County

Attorney, for appellee.



       Heard by Potterfield, P.J., and Doyle and Tabor, JJ. McDonald, J., takes

no part.
                                         2


POTTERFIELD, P.J.

       Darrell Johnson appeals following the denial of his motion to correct illegal

sentences imposed upon his pleas of guilty to three counts of willful injury

causing serious injury and two counts of assault on a police officer with a

dangerous weapon, in violation of Iowa Code sections 708.1, 708.3A(2), and

708.4(1) (2005).    Johnson contends the convictions and sentences imposed

upon three counts of willful injury causing serious injury were illegal because they

were “all three the same crime,” and the two convictions and consecutive

sentences for assault on a police officer were “the same crime.” He now argues

the multiplicitous counts and sentences, for which he plea bargained and agreed

to accept, violate the federal prohibition against double jeopardy.

I. Background Facts and Proceedings.

       The minutes of testimony indicate that on August 15, 2005, Johnson shot

his friend Jerry Miller during an altercation outside a bar on the south side of Des

Moines.    Miller attempted to prevent Johnson from driving after a night of

drinking. During the ongoing argument, Johnson managed to get in the vehicle

and Miller followed to stop Johnson from driving. When Miller got in the vehicle,

Johnson produced a handgun and shot Miller five times—four bullets entered

Miller’s chest cavity (one puncturing a lung) and a fifth bullet destroyed Miller’s

middle finger. Miller’s girlfriend, Megan Sullivan, heard Miller tell Johnson to put

the gun down then she heard gunshots. Another witness stated he heard two

shots, heard a woman scream, and then heard two more shots. Miller withdrew

from the vehicle, walked a few steps, and fell to the ground. Johnson followed

him and, as Miller was on the ground, Johnson pointed the gun at Miller again
                                         3


but did not fire. Johnson got in the vehicle and drove away. Police officers

responding to the scene gave chase. Two officers in separate vehicles pursued

Johnson, employing a Pursuit Intervention Technique (PIT) maneuver to stop

Johnson’s vehicle. Johnson was ordered out of his vehicle and told to show his

hands. When he got out of the vehicle, however, Johnson had a gun in his

hands and raised it toward the two responding officers. Both fired. Johnson was

hit and taken into custody.

       Johnson was originally charged with two counts of attempted murder 1 and

one count of assault on a police officer with a dangerous weapon. However,

pursuant to plea negotiations, the State prepared an amended trial information

alleging five counts; three counts of willful injury and two counts of assault on a

peace officer with a dangerous weapon. Pursuant to the plea agreement, the

court was to sentence Johnson to consecutive sentences totaling forty years (ten

years on each of the willful injury convictions, and five years on each assault on a

police officer), with the dangerous weapon enhancements on counts III, IV, and V

to be served consecutively for a mandatory minimum of fifteen years.

       At the plea proceeding, the prosecutor explained the factual bases for the

plea agreement:

               Counts I, II, and III are all willful injury counts against the
       same victim, essentially at the same time. The case—the criminal
       charges started with the defendant firing a gun at the victim at
       essentially point-blank range. Ultimately the gun was fired five
       different times and the victim suffered five different bullet wounds,
       all of which caused him serious injury. Four of the bullets entered
       his chest cavity. One collapsed a lung. And the fifth bullet actually


1
  One count alleged the attempted murder of Jerry Miller; the second alleged the
attempted murder of the two police officers.
                                         4


      essentially destroyed the middle finger on one hand. It doesn’t
      operate normally anymore.
             So although it was a series of events in very quick order,
      pursuant to these negotiations, we have filed three counts alleging
      that each one of three of the five bullets fired are a separate count.
             As the evening progressed, the defendant then fled the
      scene and was chased by police officers. When they eventually
      pitted his vehicle and stopped the vehicle, he got out with a gun in
      hand. There were two police officers attempting to take him into
      custody, and as a result of that conduct, the State has filed these
      amended charges IV and V for assaulting the police officers by
      displaying this gun in a threatening manner. And that would
      constitute the factual basis, I believe, for Counts IV and V.

      At the plea hearing, Johnson admitted he shot Jerry Miller three times—

and each time he pulled the trigger he intended to and did cause Miller serious

injury. He also admitted he “got in the car and left and took the cops on a high-

speed chase. Got out of the car with a dangerous weapon and so, therefore,

they felt threatened and justified.” He acknowledged he displayed his firearm at

the two officers knowing they were police officers.

      On March 15, 2006, the district court followed the plea bargain and

adjudged Johnson guilty of three counts of willful injury causing serious injury, in

violation of Iowa Code section 708.4(1) (2005), and two counts of assault on a

police officer with a dangerous weapon, in violation of sections 708.1 and

708.3A(2). The court sentenced Johnson to consecutive terms of imprisonment

not to exceed forty years, with a mandatory minimum of fifteen years, finding

“[c]onsecutive sentences are imposed based on the separate acts of violence at

issue . . . and because the sentence is a product of plea negotiations and a joint

recommendation deemed appropriate by the court.”

      In June 2012, Johnson filed a motion to correct illegal sentence,

contending counts I and II either should have run concurrently or merged with
                                        5


count III as they were all a result of a continuous offense against Miller with all

the shots fired in rapid succession with no break in the action. He also argued

there was only one “assault” on the officers. The State resisted, but did not

challenge the procedure used by Johnson—the motion challenging an illegal

sentence.

       On October 1, 2013,2 relying upon the recently decided State v. Velez,

829 N.W.2d 572, 583 (Iowa 2013), the district court noted that the facts were not

in dispute:

       Defendant shot at the victim, Jerry Miller, five times, each time
       intending to cause serious injury. At least three of the shots fired
       actually did cause the victim serious injury. After shooting Miller,
       Defendant then led the police on a high-speed chase. At the
       conclusion of the chase, Defendant exited his vehicle. When he
       exited his vehicle, he knowingly brandished a handgun at two
       uniformed police officers present at the scene.

The district court concluded that using the completed-act test enunciated in

Velez, 829 N.W.2d at 583,

       each of the three shots Defendant fired from the gun was the result
       of a voluntary bodily movement; and, those gunshots inflicted three
       distinct, individual serious injuries. Therefore, under the completed
       acts test, each gunshot was a completed act sufficient to support a
       conviction and separate sentence for each count of willful injury
       causing serious injury.

The court upheld the two convictions of assault on a police officer because the

defendant “committed two offenses when he assaulted two distinct victims.”

       On October 16, 2013, Johnson filed a motion for more specific ruling,

which was denied. Johnson now appeals, contending the sentences imposed

are illegal.

2
  The parties sought continuances of the hearing on the motion to correct illegal
sentence to wait for a ruling by the supreme court in the anticipated Velez case.
                                         6


II. Scope and Standard of Review.

       Claims of an illegal sentence may be raised at any time. Iowa R. Crim. P.

2.24(5)(a) (“The court may correct an illegal sentence at any time.”); State v.

Pearson, 836 N.W.2d 88, 94 (Iowa 2013).          We review a claim of an illegal

sentence for correction of errors of law. State v. Hoeck, 843 N.W.2d 67, 70

(Iowa 2014).       “We review de novo a constitutional challenge to an illegal

sentence.” Id.

III. Discussion.

       “[T]he Federal Double Jeopardy Clause protects against three types of

offenses: protection against a second prosecution after acquittal; protection

against a second prosecution after conviction; and protection against multiple

punishments for the same offense.” Velez, 829 N.W.2d at 584. In the case

before us, Johnson argues the third type—multiple punishments for the same

offense—has occurred.

       “It is well established in Iowa law that a single course of conduct can give

rise to multiple charges and convictions.” Id. “An illegal sentence is a sentence

that is not permitted by statute.” State v. Copenhaver, 844 N.W.2d 442, 447

(Iowa 2014).     “If the legislature criminalizes two separate and distinct acts,

separate sentences on each act are not illegal.” Id. Thus, we must determine

“what unit of prosecution the legislature intended in enacting the statute.” Id.

       For example, in Copenhaver, 844 N.W.2d at 449, the court determined

“the unit of prosecution for robbery requires the defendant to have the intent to

commit a theft, coupled with any of the following—commits an assault upon

another, threatens another with or purposely puts another in fear of immediate
                                           7

serious injury, or threatens to commit immediately any forcible felony.” See Iowa

Code § 711.1. The court concluded that where the defendant had approached

two tellers in a bank individually and demanded money from each, the State had

shown the defendant intended to commit two separate and distinct thefts.

Copenhaver, 844 N.W.2d at 450.

       A. Willful injury.

       Velez involved an ineffective-assistance-of-counsel claim on direct appeal

from a guilty plea, claiming the absence of a factual basis to support two

separate willful injury counts. Velez, 829 N.W.2d at 575. At the time of his guilty

plea, Velez did not make a separate factual basis for each of the two willful injury

counts. Id. Velez’s plea, like Johnson’s, was a negotiated plea bargain with

agreed-upon consecutive sentences.         State v. Velez, No. 11-0472, 2012 WL

652298, at *1 (Iowa Ct. App. Feb. 29, 2012). Our court found no factual basis for

a second count of willful injury.

       On further review, the supreme court vacated our decision, stating,

       [O]ur task consists of determining legislative intent for a question
       the legislature does not seem to have explicitly considered. Could
       the unit of prosecution be comprised of a single completed blow
       resulting in serious injury, or do all blows occurring in an attack on a
       single victim necessarily constitute a course of conduct, precluding
       multiple charges for the attack? If the former, the State has proven
       a factual basis for both guilty pleas. If the latter, the State has not
       proven a factual basis, and double jeopardy protection is triggered.

Velez, 829 N.W.2d at 580.           The supreme court was required to determine

whether the unit of prosecution for purposes of the offense of willful injury

causing bodily injury could be “a single completed blow resulting in serious

injury.” Id. at 581. In analyzing the question presented, the Velez court vacated
                                         8


the opinion of this court, which found no support for two counts of willful injury in

the factual basis presented. Id. at 575. The supreme court went on to review the

tests employed in this state and in other jurisdictions “in determining what

constitutes multiple acts and thus could be considered multiple counts.” Id. The

court discussed three separate tests to determine if substantial evidence exists to

convict a defendant of multiple assaults arising from a single altercation between

the defendant and his victim: the separate-acts test, id. at 581-82; the break-in-

the-action test, id. at 582-83; and the completed-acts test. Id. at 583. With

respect to the completed-acts test, the court concluded the defendant had

       committed at least two completed acts constituting willful injury
       causing serious injury in violation of Iowa Code section 708.4. . . .
       Specifically, Welsh’s minutes of testimony describe Velez striking
       Kennedy “20 to 40 times” with a metal pole. Since either a single
       blow or a single series of blows caused each serious injury, we find
       that there were more than two completed acts, as Kennedy
       suffered at least two serious injuries.

Id. at 583-84. The court held that under either the completed-acts test or the

break-in-the-action test, “Velez committed two acts meeting the statutory

definition of willful injury.” Id. at 584. “Although [the Velez court] discussed each

test separately, the goal in applying each test was to determine whether the

record established a factual basis to convict the defendant of separate and

distinct acts of assault or only a single continuous act of assault.” State v. Ross,

845 N.W.2d 692, 702 (Iowa 2014) (discussing Velez).

       Having found a factual basis for each count, the supreme court rejected

Velez’s double jeopardy claim:

       In order to determine if Velez’s second conviction constitutes a
       violation of his double jeopardy protections, the key question we
       must answer is what the legislature intended would constitute a unit
                                                9


        of prosecution under Iowa Code section 708.4. In our analysis of
        whether two distinct factual bases existed to accept Velez’s guilty
        plea, we analyzed legislative intent. We found that under both the
        break-in-the-action test and the completed-acts test, Velez
        committed two or more discrete acts of willful injury. Because the
        legislative intent was to punish these two or more acts, double
        jeopardy is not violated.

Velez, 829 N.W.2d at 584.

        In State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014), the defendant pled

guilty to three counts of intimidation with a dangerous weapon with intent. The

supreme court, however, determined the record on appeal did not establish a

factual basis for three separate and distinct acts of intimidation with a dangerous

weapon with intent.3 Gines, 844 N.W.2d at 441. The court noted, “Although the

defendant conceded he fired three shots in the presence of others, he did not


3
  Gines was a direct appeal following a plea proceeding and presented the question
“whether Gines’s trial counsel was ineffective for allowing him to plead guilty to three
counts of intimidation with a dangerous weapon with intent is dispositive of this appeal.”
844 N.W.2d at 440.
                  [A] challenge to an illegal sentence includes claims that the court
       lacked the power to impose the sentence or that the sentence itself is
       somehow inherently legally flawed, including claims that the sentence is
       outside the statutory bounds or that the sentence itself is unconstitutional.
       This conclusion does not mean that any constitutional claim converts a
       sentence to an illegal sentence. For example, claims under the Fourth,
       Fifth and Sixth Amendments ordinarily do not involve the inherent power
       of the court to impose a particular sentence. Nor does this rule allow
       litigants to reassert or raise for the first time constitutional challenges to
       their underlying conviction.
State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009). However, an illegal sentence
does include a claim that “‘[t]he punishment meted out was . . . in excess of that
prescribed by the relevant statutes, multiple terms were . . . imposed for the same
offense, . . . [or] the terms of the sentence itself [were] legally or constitutionally invalid in
any other respect.’” Id. at 872 (quoting Hill v. United States,368 U.S. 424, 430 (1962).
       Generally, a motion to correct an illegal sentence would not be the appropriate
vehicle to challenge the factual basis for a plea. Cf. State v. Schminkey, 597 N.W.2d
785, 788 (Iowa 1999) (“Where a factual basis for a charge does not exist, and trial
counsel allows the defendant to plead guilty anyway, counsel has failed to perform an
essential duty.”). However, the State did not object to Johnson’s use of this vehicle and
thus we address the merits of the claim. See DeVoss v. State, 648 N.W.2d 56, 60-62
(Iowa 2002).
                                            10

concede each shot was a separate or distinct act. Additionally, when asked

about his intent at the time, he stated that in making these shots he had the

intent to injure or provoke fear or anger in other people.”4 Id. (first emphasis

added).

       The court thus used the Ross six-factor test to determine to determine if

consecutive shots are separate and distinct acts or one continuous act for

purposes of the charge of intimidation with a dangerous weapon: “‘(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.’” Id. (quoting Ross, 845 N.W.2d at 705). The court vacated the

sentences imposed upon the three counts of intimidation with a dangerous

weapon with intent, but remanded to allow the State the opportunity to establish

a factual basis. Id. at 441-42.

       Here, we are not faced with the same dilemma presented in Gines. The

record before us establishes at least three separate gunshots and three separate

serious injuries—and Johnson admitted that each time he pulled the trigger he

intended to cause Miller serious injury. Under the completed-acts test, Johnson

committed at least three acts meeting the statutory definition of willful injury.




4
  In Gines, the supreme court remanded to the district court “to give the State the
opportunity to establish a factual basis.” 844 N.W.2d at 441. The court noted that if the
State was unable to establish a factual basis for three separate and distinct charges,
“the State did not get the benefit of its plea bargain” and the district court should vacate
the defendant’s convictions and return the parties to the position they were in before the
plea agreement, including allowing the State to reinstate charges and file any additional
charges supported by the available evidence. Id. at 442.
                                        11


Because the legislative intent was to punish these three discrete acts, double

jeopardy is not violated. See Velez, 829 N.W.2d at 584.

      B. Assault against a police officer while displaying a dangerous

weapon.

      Johnson argues that he committed but one assault on the police officers.

The unit of prosecution for purposes of Iowa Code section 708.3A(2) requires

that the defendant (1) “commit[] an assault, as defined in section 708.1,”

(2) “against a peace officer . . . who knows that the person against whom the

assault is committed is a peace officer,” and “uses or displays a dangerous

weapon.” (Emphasis added.)

      Under section 708.1,

      A person commits an assault when, without justification, the person
      does any of the following:
              ....
              2. Any act which is intended to place another in fear of
      immediate physical contact which will be painful, injurious, insulting,
      or offensive, coupled with the apparent ability to execute the act.
              3. Intentionally points any firearm toward another, or displays
      in a threatening manner any dangerous weapon toward another.

      We note that the legislature has used the singular throughout—“an

assault,” against “a peace officer,” knowing “the person . . . is a peace officer.”

Iowa Code § 708.3A(2). The victim is defined by statute as “a peace officer.”

See Copenhaver, 844 N.W.2d at 449, 451-52 (affirming finding of two separate

assaults with intent to commit a theft against two bank tellers); State v.

Constable, 505 N.W.2d 473, 475 (Iowa 1993) (affirming sentencing on five

counts of sexual abuse: two counts for one victim and three counts for the other
                                           12


victim).5 Consequently, the record supports a finding that Johnson committed

two separate acts of assault on a peace officer with a dangerous weapon. Cf.

Ross, 845 N.W.2d at 699 (addressing the “within an assembly of people”

alternative of the offense of intimidation with a dangerous weapon with intent and

noting “the victim is the assembly of people as a whole”).                 Multiplicitous

sentences have not been imposed.

IV. Conclusion.

       We conclude Johnson was not illegally subjected to multiple punishments

for the same offense and therefore we affirm the denial of his motion to correct

illegal sentences. We affirm.

       AFFIRMED.




5
 The State relies upon State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982), in which the
court affirmed convictions for two counts of assault with intent to inflict serious injury
where the defendant had driven his vehicle at two sheriff’s deputies. The unit of
prosecution, however, was not at issue in that case and we do not find it on point.
