IN THE SUPREME COURT OF IOWA 

No. 96 / 07–0236 

Filed October 3, 2008 

STATE OF IOWA, 

 Appellee, 

vs. 

JOHN FEREGRINO, JR., 

Appellant. 

 On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Pottawattamie County, 

Gary K. Anderson, Judge. 

State seeks further review of court of appeals’ decision reversing 

conviction for ineffective assistance of counsel. DECISION OF COURT 

OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED. 

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

Assistant State Appellate Defender, for appellant. 

 Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant 

Attorney General, Matthew D. Wilber, County Attorney, and Kyle Jones 

and Christine Shockey, Assistant County Attorneys, for appellee. 
2 

APPEL, Justice. 

In this case, a criminal defendant raises two constitutional 

questions arising out of his conviction for driving a motor vehicle while 

intoxicated. First, the defendant challenges the validity of an 

investigatory stop based on a violation of a local noise ordinance which 

he claims is unconstitutionally vague. Second, he challenges the validity 

of his jury-trial waiver where he signed a written waiver explaining in 

some detail the consequences of the waiver, but where the oral colloquy 

before the court was conclusory in nature. On further review, we hold 

that the defendant’s claims are without merit on the current record. 

I. Factual and Procedural Background. 

At about four a.m. on July 4, 2006, Carter Lake Police Officer Ron 

Hansen heard loud music emanating from a motor vehicle from an 

approximate distance of one hundred feet. The officer activated his 

emergency lights and pulled the vehicle over to the side of the road. The 

officer advised the driver, John Feregrino, Jr., that he was stopped for 

violation of a municipal noise ordinance. 

During the stop, Hansen detected a strong odor of alcohol coming 

from Feregrino. Hansen also noticed that Feregrino’s eyes were 

bloodshot and watery and that his speech was slurred. Hansen 

performed the horizontal gaze nystagmus test, which indicated 

intoxication. Although Feregrino consented to a preliminary breath test, 

no result was obtained due to Feregrino’s inability or unwillingness to 

exhale. Hansen placed Feregrino under arrest for operating a motor 

vehicle while intoxicated (OWI). The results of a DataMaster test later 

showed Feregrino’s blood-alcohol level to be 0.199. 
3 

Feregrino was subsequently charged with first offense OWI in 

violation of Iowa Code section 321J.2 (2005) and violation of the 

municipal noise ordinance. He filed a motion to suppress the evidence of 

his intoxication, claiming that the officer lacked probable cause or 

reasonable suspicion to stop Feregrino’s vehicle because the noise 

ordinance which allegedly justified the stop was unconstitutionally 

vague. The district court rejected this contention. 

Prior to trial on November 14, Feregrino signed a written waiver of 

his right to a jury trial. The written waiver stated: (1) he had been fully 

advised by his attorney that he had a right to be tried by a twelve person 

jury under the state and federal constitutions and the Iowa Rules of 

Criminal Procedure; (2) that by waiving a jury trial he would no longer be 

able to help in the selection of a jury; (3) that unanimity of twelve 

persons will no longer be required for conviction; and (4) that his case 

would be decided by a single judge. For reasons not revealed in the 

record, the written waiver was not filed until November 29. Feregrino 

does not dispute, however, that he signed the waiver prior to his bench 

trial. 

Also prior to trial, the district court engaged in a short colloquy 

with the defendant: 

THE COURT: Mr. Feregrino, you’ve had a sufficient 

amount of time to talk to [defense counsel] Mr. Heithoff? 

THE DEFENDANT: Uh-huh, yes, sir. 

THE COURT: And you wish to waive a jury trial and 

submit the case as indicated by Mr. Heithoff? 

THE DEFENDANT: Yes, sir. 

THE COURT: Very well. 
4 

The matter proceeded to trial before the district court. Feregrino 

was convicted of first offense OWI. The district court dismissed the 

charge of violating the noise ordinance because someone other than the 

arresting officer had improperly amended the original citation. 

Feregrino appealed his conviction, reasserting his vagueness 

argument. Feregrino also asserted an ineffective-assistance-of-counsel 

claim, arguing that his jury-trial waiver did not meet the standards this 

court established in State v. Stallings, 658 N.W.2d 106, 111 (Iowa 2003). 

Relying on Stallings, Feregrino further claimed that prejudice should be 

presumed because of this structural defect. 

We transferred the case to the court of appeals. The court of 

appeals reversed Feregrino’s conviction, finding ineffective assistance of 

counsel. We granted further review. 

II. Standard of Review. 

This court engages in de novo review of constitutional claims 

arising from motions to suppress. State v. Breuer, 577 N.W.2d 41, 44 

(Iowa 1998). The adequacy of a jury-trial waiver is a mixed question of 

fact and law which we decide de novo. Stallings, 658 N.W.2d at 108. We 

also consider a claim of ineffective assistance of counsel de novo. Id. 

III. Discussion. 

A. Constitutionality of Noise Ordinance. Feregrino’s first claim 

is that the evidence of intoxication introduced at trial was unlawfully 

obtained. According to Feregrino, the underlying noise ordinance, which 

was the basis of Officer Hansen’s stop, is so vague that it violates due 

process of law. As a result, Feregrino argues that the evidence of 

intoxication is fruit of the poisonous tree and should have been excluded 

at trial. 
5 

The ordinance in question, Carter Lake Municipal Ordinance 

55.12(cc), provides: 

The following circumstances are considered per se violations 

as being loud, raucous, and disagreeable noises causing 

disturbance to the general public and a violation of this 

Chapter: 

a. Noise emanating from a motor vehicle that can be 

heard from a distance of one-hundred (100) feet or 

more. 

The Due Process Clauses of the Fourteenth Amendment of the 

United States Constitution and Article I, section 9 of the Iowa 

Constitution prohibit enforcement of statutes that are so vague that they 

do not provide citizens with fair warning of what conduct is prohibited 

and encourage discriminatory law enforcement.1 Kolender v. Lawson, 

461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983); 

Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294, 2299–

300, 33 L. Ed. 2d 222, 227–28 (1972); State v. Todd, 468 N.W.2d 462, 

465 (Iowa 1991). In addition, where a vague statute abuts upon 

sensitive areas protected by the First Amendment, care must be taken to 

ensure that criminal statutes do not cause persons to steer far wider of 

 1While Feregrino cites both the Iowa and United States constitutional provisions 

related to due process, he does not present any argument suggesting that the due 

process clause under the Iowa Constitution should be interpreted differently than under 

its counterpart in the United States Constitution. We zealously guard our ability to 

interpret provisions of the Iowa Constitution differently than binding interpretations of 

the United States Constitution. In re Detention of Garren, 620 N.W.2d 275, 280 n.1 

(Iowa 2000). As a result, an interpretation of the United States Supreme Court, though 

binding on this court with respect to the meaning of a provision of the United States 

Constitution, does not provide controlling authority on the question of the proper 

interpretation of a similar provision under the Iowa Constitution. If a party declines to 

offer a different interpretation under the state constitution and the reasons in support 

of that different interpretation, the issue of a potentially disparate approach to the state 

constitutional provision may not be properly illuminated through the adversary process. 

As a result, prudential concerns ordinarily mean that where an argument that the Iowa 

Constitution should be construed differently than the United States Constitution is not 

presented, we assume for the purposes of the case that the provisions should be 

interpreted in an identical fashion. Id.
6 

the unlawful zone in order to avoid criminal prosecution. See Grayned, 

408 U.S. at 109, 92 S. Ct. at 2229, 33 L. Ed. 2d at 228. 

In this case, Feregrino does not claim that the ordinance impinges 

upon his First Amendment rights. His only claim is that the ordinance is 

so vague that it does not provide reasonable notice to him and 

encourages arbitrary enforcement. As a result, we do not consider any 

potential overbreadth challenge. We only consider whether the Carter 

Lake noise ordinance was unduly vague as to him. 

We reject the claim which Feregrino advances. Feregrino was 

charged under the provision of the ordinance that per se prohibits 

“[n]oise emanating from a motor vehicle that can be heard from a 

distance of one-hundred (100) feet or more.” Carter Lake Mun. Code 

§ 55.12(cc). There is nothing unconstitutionally vague about this 

provision of the Carter Lake ordinance. 

A person of ordinary understanding would know that cranking up 

the car radio to extraordinarily loud levels will expose the operator to a 

citation for violation of the ordinance. See Davis v. State, 537 S.E.2d 

327, 329 (Ga. 2000); State v. Medel, 80 P.3d 1099, 1103 (Idaho Ct. App. 

2003); Holland v. City of Tacoma, 954 P.2d 290, 295 (Wash. Ct. App. 

1998). Turning up the volume in a car radio so that it can be heard one 

hundred feet away is far louder than needed to be heard by car 

occupants and cannot be confused with ordinary use. 

It may not be easy to measure whether noise emanating from a 

vehicle reaches one hundred feet, but this is not a problem of vagueness. 

Indeed, if the one-hundred-foot requirement were stricken, the resulting 

ordinance would give less notice, not more to the ordinary person. Moore 

v. City of Montgomery, 720 So. 2d 1030, 1032 (Ala. Crim. App. 1998) 

(noting distance standards provide explicit guidelines to those charged 
7 

with enforcing a noise ordinance). What Feregrino raises is not a 

question of vagueness, but a problem of proof that inheres in any 

criminal statute that incorporates explicit measurements into its 

substantive elements. Whether Officer Hansen could hear the vehicle at 

a distance of one hundred feet presents a question of fact to be attacked 

through cross-examination and the adversary process, not a legal issue 

to be argued to the court. 

The per se prong of the ordinance also is not so vague as to 

encourage discriminatory enforcement. The prong under which 

Feregrino was charged does not apply to particularly-defined types of 

noise: it applies if a motor vehicle operator is blasting the music of 

Beethoven or Rihanna, the latest from a Hawkeye, Cyclone, or Panther 

athletic contest, or the details of a special deal on vinyl home siding. The 

fact that the ordinance focuses on all loud noises rather than specific 

loud noises, for vagueness purposes, is a strength rather than a 

weakness. See Thelen v. State, 526 S.E.2d 60, 62 (Ga. 2000) (noting use 

of vague and subjective terms such as “unnecessary,” “unusual,” and 

“annoying” in noise ordinance renders ordinance unconstitutional).2 The 

officer in this case only needs to determine the objective fact of whether 

the volume of the noise is sufficient to be heard one hundred feet from 

the vehicle, rather than exercising subjective judgment concerning the 

type of noise involved. Davis, 537 S.E.2d at 329; Holland, 954 P.2d at 

295. 

 2The question of whether a defendant may be charged under the Carter Lake 

ordinance for noise found to be “loud,” “raucous,” or “disagreeable,” but not subject to 

the per se provision, is not before the court. We therefore express no opinion on this 

issue. 
8 

 For the above reasons, we conclude that the provision of the Carter 

Lake noise ordinance under which Feregrino was stopped is not so vague 

as to violate due process. 

B. Ineffective Assistance of Counsel. 

The right to a jury trial is, of course, a distinguishing feature of the 

American criminal justice system. The right to a jury trial allows a group 

of ordinary citizens, and not a single judge, to determine the factual 

question of guilt. The right to a jury trial thus has the potential of 

holding the government in check and preventing government 

overreaching or persecution. The right to a jury trial is widely accepted 

as a fundamental constitutional right. 

Iowa Rule of Criminal Procedure 2.17(1) is designed to protect a 

defendant’s constitutional right to a jury trial. The rule provides that 

criminal “[c]ases required to be tried to a jury shall be so tried unless the 

defendant voluntarily and intelligently waives a jury trial in writing and 

on the record. . . .” Two of our recent cases have explored the contours 

of the requirements of this rule. 

In Stallings, this court considered a case where the defendant did 

not execute a written waiver of his right to a jury trial and the court did 

not conduct an in-court colloquy with the defendant informing him of his 

jury trial right. Stallings, 658 N.W.2d at 108. In Stallings, we noted that 

rule 2.17(1) was based on practical considerations which suggested that 

a written waiver as well as an in-court colloquy should be used to assure 

a proper jury-trial waiver. Id. at 111. We further stated that a written 

waiver alone is not sufficient to satisfy the dual criteria of the rule, noting 

that the requirement of the rule that a defendant make a knowing and 

intelligent waiver “on the record” was distinct from the requirement of a 

written waiver. Id. at 110. We held in Stallings that a failure to assure 
9 

compliance with the rule constituted a breach of duty by trial counsel. 

Id. at 112. 

In Stallings, we also considered whether a defendant who 

demonstrated a violation of rule 2.17(1) was required to show prejudice 

to obtain reversal of a subsequent conviction by the court. Id. While 

ordinarily a defendant claiming ineffective assistance of counsel must 

show both a breach of duty and prejudice, Strickland v. Washington, 466 

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), we 

held in Stallings that a violation of the rule amounted to “one of those 

rare cases of a ‘structural’ defect in which prejudice is presumed.” 

Stallings, 658 N.W.2d at 112. 

In State v. Liddell, 672 N.W.2d 805 (Iowa 2003), this court further 

considered the phrase “on the record” as used in rule 2.17(1). We held 

that the phrase required “some in-court colloquy or personal contact 

between the court and the defendant, to ensure the defendant’s waiver is 

knowing, voluntary, and intelligent.” 672 N.W.2d at 812. While the 

Liddell court declined to provide a specific checklist for the content of the 

court inquiry, we stated that the inquiry “may” involve informing the 

defendant (1) that twelve members of the community compose a jury; 

(2) that the defendant may take part in jury selection; (3) that jury 

verdicts must be unanimous; (4) that the court alone decides guilt or 

innocence if the defendant waives a jury trial; and (5) that neither the 

court nor the prosecution will reward the defendant for waiving a jury 

trial. Id. at 813–14. The five subject areas were not designated to create 

“black letter rules,” but merely helpful tools to determine whether a 

waiver was “knowing, voluntary, and intelligent.” Id. at 814. Substantial 

compliance was characterized as “acceptable.” Id.
10 

In this case, Feregrino signed a written waiver of his right to a jury 

trial but engaged in a limited colloquy with the court. Feregrino argues 

that the conclusory in-court colloquy in this case does not meet the 

standards for a knowing and voluntary waiver on the record as required 

in Liddell and, as a result, counsel breached his duty to ensure a valid 

waiver of a jury trial. Feregrino further asserts that under this court’s 

decision in Stallings, prejudice should be conclusively presumed because 

of the structural defect. 

The State in this appeal does not challenge Feregrino’s assertion 

that his counsel breached his duty of care under Liddell by failing to 

ensure that a detailed in-court colloquy was conducted on the record. 

Instead, the State asserts that the holding in Stallings that prejudice 

must be presumed in cases where there has been a violation of rule 

2.17(1) should be overruled. 

The State supports its position by questioning the analysis in 

Stallings. The State argues the cases cited in Stallings for the proposition 

that failure to conform with the requirements of rule 2.17(1) amounted to 

a structural defect are distinguishable. In the first case cited by the 

Stallings court, McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998), 

the defendant was not informed at all of his right to a jury trial either by 

counsel or the trial court and, as a result, proceeded to trial by the court 

without ever knowing of his constitutional right to a jury trial. In the 

second case cited in Stallings, United States v. Raether, 82 F.3d 192, 193 

(8th Cir. 1996), the defendant was in fact deprived of his right to a jury 

trial, which he wanted, when the trial court failed to submit instructions 

on an essential element of the crime. The State suggests that the 

“structural” defect in McGurk and Raether, was that the defendants were 

actually or functionally deprived of their right to a jury trial. 
11 

Unlike in McGurk and Raether, the State contends that the record 

here does not reveal a structural deprivation of a constitutional right to a 

jury trial, but merely failure to comply with the procedural requirements 

of rule 2.17(1). The State argues that a nonconstitutional error or failure 

to comply with the rule is simply not comparable to structural errors 

found by the United States Supreme Court in cases involving complete 

deprivation of the right to legal counsel or involving trial before a biased 

trial judge. See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 

9 L. Ed. 2d 799 (1963); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 

L. Ed. 749 (1927). Such “structural” errors involve defects “ ‘affecting the 

framework within which the trial proceeds, rather than simply an error 

in the trial process itself.’ ” Johnson v. United States, 520 U.S. 461, 468, 

117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718, 728 (1997) (quoting Arizona v. 

Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 

302, 331 (1991)). 

In cases involving ineffective assistance of counsel, the Supreme 

Court has held that prejudice may be presumed where: (1) counsel is 

completely denied at a crucial stage of the proceeding; (2) where counsel 

fails to subject the prosecution’s case to meaningful adversary testing; or 

(3) where surrounding circumstances justify a presumption of 

ineffectiveness, for example, where counsel has an actual conflict of 

interest in jointly representing multiple defendants. United States v. 

Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 

(1984). The State argues that Cronic narrows rather than expands the 

universe of ineffective-assistance-of-counsel cases where prejudice is to 

be presumed. In support, the State directs our attention to a gallery of 

federal appellate court cases where prejudice has not been presumed in 

cases involving claims of ineffective assistance of counsel in connection 
12 

with jury-trial waivers, as well as to our own cases prior to Stallings that 

adopted a similar approach. See, e.g., Sowell v. Bradshaw, 372 F.3d 

821, 836–38 (6th Cir. 2004); Parrish v. Fulcomer, 150 F.3d 326, 328 (3d 

Cir. 1998); Hensley v. Crist, 67 F.3d 181, 184–85 (9th Cir. 1995); State v. 

Buck, 510 N.W.2d 850, 853 (Iowa 1994); Jasper v. State, 477 N.W.2d 

852, 857 (Iowa 1991). 

The State finally points out that the Stallings rule is inconsistent 

with a recent ruling of this court involving acceptance of guilty pleas. In 

State v. Straw, 709 N.W.2d 128, 137–38 (Iowa 2006), this court refused 

to accept a per se rule of prejudice where there is a deficiency in the 

court colloquy and acceptance of a guilty plea. The State argues that the 

holdings in Straw and Stallings on the issue of prejudice are 

inconsistent. Under Straw, a defendant who pleads guilty waives all of 

his constitutional trial rights, including his right to a jury trial. In the 

Straw guilty plea setting, we have held that a defendant claiming 

ineffective assistance of counsel based on a lack of a knowing and 

voluntary waiver of the right to a jury trial must show actual prejudice, 

while in a Stallings setting, where trial to the court has actually occurred 

after an apparent waiver of the right to jury trial, a showing of prejudice 

is not required. Straw, 709 N.W.2d at 137–38; Stallings, 658 N.W.2d at 

112. 

We agree with the State. As an analytical matter, we find the 

reasoning in Stallings unconvincing. The fact that the requirements of 

rule 2.17(1) have not been met does not necessarily mean that a violation 

of the defendant’s right to a jury trial has in fact occurred.3 As noted 

 3Nothing in this opinion undercuts the salutary purpose of rule 2.17(1), which is 

designed to ensure that a defendant is informed of his right to a jury trial and to create 

a clear record with respect to any waiver. We hold only that a violation of rule 2.17(1) 
13 

recently by the Pennsylvania Supreme Court, a requirement of an oral 

colloquy related to a jury-trial waiver is a procedural device, not a 

constitutional end or a constitutional “right.” Commonwealth v. Mallory, 

941 A.2d 686, 697 (Pa. 2008). The absence of an oral colloquy or a 

written waiver does not necessarily prove that a defendant failed to 

understand the nature of the right waived by proceeding to a non-jury 

trial. Id. For example, a lawyer who is accused of a crime or a career 

criminal might have considerable first-hand knowledge of the right to a 

jury trial. Id.4 

As a result, whether there has been such an alteration of the 

fundamental trial framework in violation of the defendant’s right to a jury 

trial depends on the resolution of an antecedent question, namely, 

whether, notwithstanding the violation of the rule, the defendant 

knowingly and voluntarily waived his right to a jury trial. The antecedent 

question of whether a defendant knowingly or voluntarily waived a jury 

trial presents a question of historical fact. It does not require the court 

to speculate on whether the outcome in the case would have changed if a 

different fact-finding process, namely, trial to a jury, had occurred. 

Resolution of the waiver issue is no more difficult than countless other 

factual questions that are resolved by our courts every day. If as a 

____________________________ 

does not, in and of itself, mean that there has been a deprivation of the constitutional 

right to a jury trial. 

4Although the facts in McGurk are distinguishable from those in this case, our 

analysis in this opinion is inconsistent with McGurk. The appellate court opinions in 

McGurk indicate that there was no written waiver, no in-court colloquy, and no 

discussion between the defendant and his counsel with respect to the jury-trial wavier. 

McGurk, 163 F.3d at 472; State v. McGurk, 532 N.W.2d 354, 359 (Neb. Ct. App. 1995). 

The record as reported in the appellate cases does not, however, conclusively 

demonstrate that the defendant did not knowingly and voluntarily waive his right to a 

jury trial. The lack of a written waiver, in-court colloquy, and discussion with counsel 

may be important evidence in a postconviction proceeding, but might not be sufficient 

to carry the day if the evidence shows that the defendant was otherwise well-informed 

about his right to a jury trial. 
14 

matter of fact the waiver was knowingly and voluntarily given, no 

infringement of a constitutional right or structural defect is present. 

The doctrine of stare decisis counsels caution before we overturn 

prior precedent of this court. At the same time, we should not look away 

from decisions that are analytically unsound and inconsistent with our 

subsequent case law. We find it better to correct our error now rather 

than ignore the problem. The holding in Stallings that prejudice is 

presumed in cases involving a deficiency in a jury-trial waiver under rule 

2.17(1) is overruled. 

We next turn to the question of whether, on the present record, we 

can determine whether Feregrino was actually prejudiced by his 

counsel’s failure to obtain a jury-trial waiver that complied with the rule. 

The record before us is inadequate to make this determination. State v. 

Leckington, 713 N.W.2d 208, 218 (Iowa 2006). We therefore preserve the 

issue for postconviction relief. 

IV. Conclusion. 

We hold that the provision of the municipal ordinance noise under 

which the defendant was stopped was not unconstitutionally vague. 

Evidence obtained pursuant to the stop, therefore, was properly 

admitted. We further hold that a defendant claiming ineffective 

assistance of counsel due to counsel’s failure to ensure compliance with 

the jury-trial waiver provisions of Iowa Rule of Criminal Procedure 

2.17(1) must show, not only that counsel breached an essential duty, but 

must also show actual prejudice. On this point, Stallings is overruled. 

Because the record on appeal is inadequate to resolve the issue of 

prejudice, we preserve Feregrino’s ineffective-assistance-of-counsel claim 

for postconviction relief. 
15 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED. 

All justices concur except Baker, J., who takes no part.