STATE OF IOWA, Plaintiff-Appellee, vs. JOHN FEREGRINO, JR., Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-858 / 07-0236
Filed January 16, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN FEREGRINO, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gary K.
Anderson, Judge.
John Feregrino, Jr. appeals his conviction, following a trial to the court, for
operating while intoxicated (OWI), first offense.
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Robert P. 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.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
MILLER, J.
John Feregrino, Jr. appeals his conviction, following a trial to the court, for
operating while intoxicated (OWI), first offense. He contends the district court
erred in denying his motion to suppress and that his trial counsel was ineffective
for failing to assure his waiver of jury trial was knowing, voluntary, and intelligent.
We affirm in part, reverse in part, and remand.
The record reveals the following facts. On July 4, 2006, at approximately
3:45 a.m. Carter Lake police officer Ron Hansen was on duty and heard loud
music coming from a vehicle. The music could be heard from one hundred feet
or more away. Officer Hansen stopped the vehicle for being in violation of a city
ordinance regarding excessive noise and told the driver he was stopping him for
loud music. The driver and sole occupant of the vehicle was the defendant,
Feregrino.
Officer Hansen detected a strong odor of alcoholic beverage on
Feregrino’s breath and asked him if he had been drinking, to which Feregrino
replied, “Not a whole lot.” Feregrino’s speech was slurred, and his eyes were
watery and bloodshot. Officer Hansen issued Feregrino a citation for violation of
the noise ordinance.
Hansen then asked Feregrino to step out of the car and requested he
submit to some field sobriety tests, to which Feregrino agreed. Officer Hansen
performed the horizonal gave nystagmus test and Feregrino failed it. Feregrino
could not or would not perform any other field sobriety tests and could not or
would not submit a proper sample for a preliminary breath test. Hansen arrested
Feregrino for OWI and took him to the police station. At the station Feregrino
3
was given a Datamaster breath test which showed an alcohol concentration of
0.199.
On August 16, 2006, the State charged Feregrino, by trial information, with
OWI, first offense, in violation of Iowa Code section 321J.2 (2005). Feregrino
filed a motion to suppress, and two additional amended and substituted motions
to suppress and dismiss, contending the Officer Hansen’s stop was illegal
because the Carter Lake noise ordinance was unconstitutionally vague under
both the state and federal constitutions. The court overruled the motion, finding
the ordinance was not unconstitutional and that Officer Hansen had reasonable
cause to stop Feregrino for violating it.
On November 14, 2006, Feregrino appeared with counsel in court and
requested a trial on the minutes of evidence and the record made at the
suppression hearing. Feregrino signed a written waiver of his right to jury trial. 1
The district court engaged Feregrino in a very short colloquy concerning his
waiver of jury trial and heard Feregrino’s third amended and substituted motion to
suppress
and
dismiss
in
which
he
renewed
his
argument
on
the
unconstitutionality of the city ordinance. In an order filed November 29, 2006, the
court overruled Feregrino’s renewed motion to suppress, found him guilty of
OWI, and dismissed a charge of violating the city noise ordinance because
someone other than Officer Hansen had improperly amended the original
citation. The court subsequently sentenced Feregrino to serve thirty days in jail
with all but two days suspended.
1
Although the waiver was not actually filed until November 29, the same day the court’s
written order finding Feregrino guilty was filed, the court apparently accepted it at the
November 14 hearing.
4
Feregrino appeals his conviction, contending the court erred in denying his
motion to suppress and that his trial counsel was ineffective for failing to assure
his wavier of jury trial was knowing, voluntary, and intelligent. We first address
his contention that the stop by Officer Hansen was illegal because the Carter
Lake ordinance is unconstitutionally vague under both the state and federal
constitutions. 2
A challenge to the district court's ruling on a motion to suppress implicates
the Fourth Amendment to the United States Constitution. 3 State v. Otto, 566
N.W.2d 509, 510 (Iowa 1997). We review constitutional issues de novo. State v.
Breuer, 577 N.W.2d 41, 44 (Iowa 1998). In doing so, we make an independent
evaluation of the totality of the circumstances as shown by the entire record. Id.
We give deference to the trial court's findings of fact because of its opportunity to
assess the credibility of witnesses, but we are not bound by those findings. State
v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
The Fourth Amendment to the United States Constitution guarantees a
person's right to be free from unreasonable search and seizure. U.S. Const.
amend. IV. Evidence obtained in violation of this provision is inadmissible in a
prosecution, no matter how relevant or probative the evidence may be. State v.
2
The language of the state and federal constitutions protecting citizens against
unreasonable search and seizure is substantially identical and we have consistently
interpreted the scope and purpose of article I, section 8, of the Iowa Constitution to track
with federal interpretations of the Fourth Amendment. State v. Breuer, 577 N.W.2d 41,
44 (Iowa 1998); State v. Showalter, 427 N.W.2d 166, 168 (Iowa 1988). Accordingly, we
analyze the validity of the stop here similarly under both the federal and state
constitutions.
3
The rights guaranteed by the Fourth Amendment apply to the states through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1694, 6 L.
Ed. 2d 1081, 1090 (1961).
5
Manna, 534 N.W.2d 642, 643-44 (Iowa 1995). “The Fourth Amendment requires
a police officer must have reasonable cause to stop an individual for investigatory
purposes.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889,
906 (1968); State v. Tompkins, 507 N.W.2d 736, 738 (Iowa Ct. App. 1993). “An
investigatory stop is considered a seizure within the meaning of the Fourth
Amendment and must be ‘supported by reasonable suspicion to believe that
criminal activity may be afoot.’” United States v. Ameling, 328 F.3d 443, 447 (8th
Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744,
750, 151 L. Ed. 2d 740, 749 (2002)).
“[S]tatutes are cloaked with a presumption of constitutionality.” State v.
Seering, 701 N.W.2d 655, 661 (Iowa 2005) (citations omitted).
One who
challenges a statute’s constitutionality “bears a heavy burden, because [he] must
prove the unconstitutionality beyond a reasonable doubt.” Id. (citation omitted).
In doing so, he or she is required to refute every reasonable basis upon which we
could declare the statute constitutional. Id. If we can construe a statute in more
than one way, one of which is constitutional, we must adopt the constitutional
construction. Id. The presumption of constitutionality which attaches to statutes
also attaches to ordinances. See Ackman v. Bd. of Adjustment, 596 N.W.2d 96,
104 (Iowa 1999).
Vague statutes are proscribed by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. In order
to avoid a vagueness problem, a penal statute must define the
criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement. If a
statute lacks clearly defined prohibitions, then it is void for
vagueness.
6
State v. Gonzalez, 718 N.W.2d 304, 309 (Iowa 2006) (internal citations and
quotations omitted). Vague statutes offend several important principles.
First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third,
but related, where a vague statute abut[s] upon sensitive areas of
basic First Amendment freedoms, it operates to inhibit the exercise
of [those] freedoms. Uncertain meanings inevitably lead citizens to
steer far wider of the unlawful zone . . . than if the boundaries of the
forbidden areas were clearly marked.
State v. Bower, 725 N.W.2d 435, 441-42 (Iowa 2006) (quoting Grayned v. City of
Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 22728 (1972) (internal citations and quotations omitted)).
“Due process merely
requires that a standard of conduct be reasonably ascertainable ‘by reference to
prior judicial decisions, similar statutes, the dictionary, or common generally
accepted usage.’” State v. Baker, 688 N.W.2d 250, 255 (Iowa 2004) (quoting
State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980)).
The Carter Lake nuisance ordinance at issue provides, in relevant part,
“Noise emanating from a motor vehicle that can be heard from a distance of one
hundred (100) feet or more” is a violation of the ordinance. We conclude a plain
reading of the ordinance defines the offense with sufficient definiteness such that
an ordinary person could easily understand what conduct is prohibited. It is a
violation of the ordinance to have any sound coming out of a vehicle that is
7
plainly audible to any person at the proscribed distance.
Furthermore, the
ordinance does not encourage arbitrary and discriminatory enforcement because
the distance standard provides an explicit guideline to those charged with
enforcing the ordinance. See Moore v. City of Montgomery, 720 So.2d 1030,
1032 (Ala. Crim. App. 1998); Commonwealth v. Scott, 878 A.2d 874, 878 (Pa.
Super. Ct. 2005). If a law enforcement officer can hear sounds from a musical
device coming from a vehicle at the proscribed distance then the ordinance has
been violated. Id. Similar ordinances and statues limiting excessive noise from
vehicles at various distances have been upheld against vagueness challenges.
See, e.g., Moore, 720 So.2d at 1031-32; Davis v. State, 710 So.2d 635, 635-36
(Fla. Dist. Ct. App. 1998); State v. Ewing, 914 P.2d 549, 556-57 (Haw. Ct. App.
1996); State v. Medel, 80 P.3d 1099, 1103 (Idaho Ct. App. 2003); Scott, 878
A.2d at 878-79; Holland v. City of Tacoma, 954 P.2d 290, 295-96 (Wash. Ct.
App. 1998).
Accordingly,
we
conclude
the
Carter
Lake
ordinance
is
not
unconstitutionally vague and Feregrino’s challenge to the ordinance is without
merit.
Officer Hansen thus had reasonable cause to stop Feregrino for a
violation of the ordinance. The district court did not err in denying Feregrino’s
motion to suppress and concluding the evidence gathered during the stop was
admissible.
Feregrino next contends his trial counsel was ineffective for failing to
assure his waiver of jury trial was knowing, voluntary and intelligent, in
accordance with the procedures for such waiver set forth in Iowa Rule of
8
Criminal procedure 2.17(1). Claims that raise constitutional questions, such as
the alleged ineffective assistance of counsel, are reviewed de novo. State v.
Watson, 620 N.W.2d 233, 235 (Iowa 2000).
To establish an ineffective assistance claim, a defendant must typically
show that (1) his counsel failed to perform an essential duty, and (2) prejudice
resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984). However, when the alleged failure of duty is a failure
to assure compliance with rule 2.17(1), upon a demonstrated inadequacy of
counsel's performance, prejudice is presumed. State v. Stallings, 658 N.W.2d
106, 112 (Iowa 2003) (“Because the right to a jury trial is so fundamental to our
justice system, we conclude this is one of those rare cases of a ‘structural’ defect
in which prejudice is presumed.”).
A trial by jury is required unless the defendant “voluntarily and intelligently
waives a jury trial in writing and on the record . . . .” Iowa R. Crim. P. 2.17(1).
Rule 2.17(1) “requires the court to conduct an in-court colloquy with defendants
who wish to waive their jury trial rights.” State v. Liddell, 672 N.W.2d 805, 811-12
(Iowa 2003). The court in Liddell found that the “on the record” language from
rule 2.17(1) requires some in-court colloquy or personal contact between the
court and the defendant, to ensure the defendant's waiver is knowing, voluntary,
and intelligent. Id. at 812.
Our supreme court has suggested a five-part inquiry that “constitute[s] a
sound method by which a court in an in-court colloquy may determine whether a
9
defendant's waiver of his right to a jury trial is knowing, voluntary, and intelligent.”
Id. at 811.
[T]he court should inquire into the defendant's understanding of the
difference between jury and nonjury trials by informing the defendant:
1. Twelve members of the community compose a jury,
2. the defendant may take part in jury selection,
3. jury verdicts must be unanimous, and
4. the court alone decides guilt or innocence if the defendant waives a jury
trial.
Importantly, . . . we also urge[ ] judges to “ascertain whether [the]
defendant is under [the] erroneous impression that he or she will be
rewarded, by either court or prosecution, for waiving [a] jury trial.”
Id. at 810-11 (quoting Stallings, 658 N.W.2d at 111) (third through fifth alterations
in original). However, the court clarified that these “five subjects of inquiry are
not ‘black-letter rules’ nor a ‘checklist’ by which all jury-trial waivers must be
strictly judged. . . .
The ultimate inquiry remains the same: whether the
defendant's waiver is knowing, voluntary, and intelligent.”
Id. at 814.
Thus,
substantial compliance with the five-factor inquiry is acceptable. Id. Sufficient
compliance with rule 2.17(1), and the voluntary and intelligent nature of the
defendant's waiver, must appear in the present record.
See Stallings, 658
N.W.2d at 111 (holding that “posttrial reconstruction of the record will not suffice
to show a valid waiver”).
On November 14, 2006, Feregrino appeared before the district court. At
that time his attorney stated to the court that Feregrino had signed a written
waiver of jury trial, stated that Feregrino would state on the record his wish to
waive a jury trial, and asked for a trial on the minutes of evidence and the record
10
made at the suppression hearing. The written waiver indicated that Feregrino
understood (1) he had a right to a trial by a jury of twelve persons; (2) that if he
waived his right to a jury trial he would not help in selecting a jury and the verdict
would not longer have to be unanimous because his case would be decided
solely by a single judge; and (3) with all that in mind he knowingly and voluntarily
waived his right to jury trial.
At that time the court inquired, “Mr. Feregrino,
you’ve had a sufficient amount of time to talk to [your attorney]?” Feregrino
answered, “Uh-huh, yes, sir.” The court then asked, “And you wish to waive a
jury trial and submit the case as indicated by [your attorney]?” Feregrino replied,
“Yes, sir.” This is the entirety of the in-court colloquy concerning waiver of a jury
trial.
In its colloquy with Feregrino the district court did not mention, or inquire
into Feregrino’s understanding of, any one or more of the “five subjects of
inquiry” suggested in Stallings and Liddell. While we recognize the court need
not assure a defendant’s awareness and understanding of all five of those
subjects, in the absence of an inquiry or colloquy concerning any of those
subjects we conclude the record does not demonstrate a voluntary and intelligent
waiver.
Counsel failed to ensure substantial compliance with the requirements of
rule 2.17(1) and thus breached an essential duty.
Prejudice is presumed.
Stallings, 658 N.W.2d at 112. 4
4
The State urges that Stallings should be overruled, insofar as it holds that defense
counsel’s failure of duty in connection with defendant’s waiver of a jury trial is
presumptively prejudicial. Although the State’s arguments may well have merit, this
court must decline the invitation to overrule Stallings, heeding an earlier admonition of
11
Based on our de novo review of the record, and for the reasons set forth
above, we conclude the district court did not err in denying Feregrino’s motion to
suppress, as the Carter Lake ordinance is not unconstitutionally vague and thus
Officer Hansen had reasonable cause to stop Feregrino. We further conclude
Feregrino’s counsel rendered ineffective assistance by not ensuring Feregrino’s
waiver of jury trial was a voluntary and intelligent waiver. We therefore reverse
Feregrino’s conviction and remand for trial to a jury unless Feregrino voluntarily
and intelligently waives his right to a trial by jury. See id.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
our supreme court. See State v. Eichler, 248 N.W.2d 587, 578 (1957) (“If our previous
holdings are to be overruled, we should ordinarily prefer to do it ourselves.”).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
