                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1975
                            Filed December 23, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN EUGENE SANDS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      Steven Eugene Sands appeals his conviction and sentence for operating

while intoxicated.   CONVICTION AFFIRMED, SENTENCE VACATED, AND

REMANDED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., Tabor, J. and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Steven Eugene Sands appeals his conviction and sentence for operating

while intoxicated (OWI).     He contends the district court erred in denying his

motion to suppress evidence because his vehicle was unlawfully stopped and

detained. He also contends the court erred in sentencing him for second-offense

OWI when he was convicted of first-offense OWI.

       I.     BACKGROUND FACTS AND PROCEEDINGS.

       On October 21, 2013, Deputy Daniel Sargent of the Floyd County Sheriff’s

Office was monitoring traffic on Highway 18 when he observed a vehicle traveling

at a speed of 30 mph. The deputy watched the vehicle pull onto the shoulder

and stop. When it pulled back into traffic a short time later, a truck swerved to

avoid hitting it. The vehicle resumed traveling at a speed of 30 mph, and Deputy

Sargent activated his emergency lights to initiate a traffic stop.

       The deputy informed Sands, the driver of the vehicle, that he had initiated

the stop because Sands was traveling at a “very dangerous low rate of speed”

and had nearly been hit by a truck. While speaking to Sands, Deputy Sargent

observed two open coolers containing cans of beer in the vehicle’s backseat and

one open can of beer between Sands’s feet. The deputy smelled “a strong odor

of alcoholic beverage coming from [Sands]” after transporting him to the patrol

car. Sands initially denied he had been drinking before admitting he had two

beers before leaving home. He also denied having any open containers of beer

in his vehicle, though Deputy Sargent discovered six open cans on the floor by

the driver’s seat after investigating further.
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       Because a preliminary breath test registered Sands’s blood alcohol

concentration at .163, Sands was arrested and later charged with OWI. On the

night of his arrest, Deputy Sargent also issued Sands a ticket for failure to

maintain minimum speed. Three days later, Deputy Sargent ticketed Sands for

improper merger.

       Sands pled not guilty to the OWI charge and filed a motion to suppress,

alleging he was improperly seized in violation of the Fourth Amendment of the

United States Constitution and article 1, section 8 of the Iowa Constitution when

Deputy Sargent initiated the traffic stop based on his failure to maintain a

minimum speed. It was later discovered there is no minimum speed on the

portion of highway Sands had been traveling at the time he was stopped. The

trial court denied the motion, finding Deputy Sargent had a reasonable belief

Sands was impaired in some manner and may have been violating the law. After

proceeding to a bench trial on the stipulated facts, the trial court found Sands

guilty of first-offense OWI.

       II.    SUPPRESSION ISSUE.

       Sands first contends the trial court erred in denying his motion to suppress

the evidence discovered following what he alleges was an unconstitutional stop

of his vehicle. We review this claim de novo. See State v. Lowe, 812 N.W.2d

554, 566 (Iowa 2012) (“Our review of constitutional issues is de novo.”). Under

this standard, we make an independent evaluation of the entire record, including

the evidence presented at the suppression hearing. Id. “We can uphold the trial

court’s ruling on any ground apparent in the record, whether urged at trial or

ruled on by the trial court.” State v. Howard, 509 N.W.2d 764, 768 (Iowa 1993).
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       To be constitutionally permissible, a traffic stop must be supported by

probable cause or a reasonable suspicion of a crime.              State v. McIver, 858

N.W.2d 699, 702 (Iowa 2015). The commission of a traffic offense establishes

both probable cause to stop a vehicle and reasonable suspicion to investigate.

Id. Sands argues he was unlawfully stopped for traveling below the minimum

speed when there is no minimum speed on the portion of the highway he was

traveling. Although Sands claims we are bound by an officer’s true reason for

initiating a traffic stop when determining whether the officer had cause to stop a

vehicle, our supreme court has held the test for reasonable cause for an

investigatory stop does not depend upon the officer’s subjective belief but on the

existence of articulable objective facts to justify the stop. State v. Scott, 409

N.W.2d 465, 467 (Iowa 1987).           Therefore, the deputy’s mistaken belief that

Sands was violating the minimum speed limit is irrelevant; the record shows the

deputy had probable cause to ticket Sands for improper merger, thereby

justifying the traffic stop. See Iowa Code § 321.313 ( 2013) (“No person shall

start a vehicle which is stopped, standing, or parked unless and until such

movement can be made with reasonable safety.”). Accordingly, we affirm the

trial court’s denial of the motion to suppress.

       III.    SENTENCING.

       Sands also contends the trial court abused its discretion in sentencing him

for second-offense OWI when he was convicted of first-offense OWI.1 The State


1
  Although Sands was charged with second-offense OWI, it appears the trial court
mistakenly failed to mention his prior OWI conviction when setting forth “the elements of
this offense” to which Sands was stipulating. In the order entered after the hearing, the
court states Sands “is guilty of the offense of Operating While Intoxicated, First Offense,
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concedes the sentence is improper. We vacate the sentence for second-offense

OWI and remand for resentencing.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.




a Serious Misdemeanor.” At sentencing, Sands’s counsel listed his prior convictions,
including three convictions for OWI. The court entered judgment and sentence against
Sands for second-offense OWI. On the same day, the court entered a nunc pro tunc
order, stating its prior order finding Sands guilty of first-offense OWI had been made in
error, claiming Sands “stipulated to a prior conviction in the 12 years preceding his
arrest,” and adjudicating Sands “to be guilty of the offense of Operating While
Intoxicated, Second Offense, an Aggravated Misdemeanor, as set out in the State’s Trial
Information.” Using a nunc pro tunc order to find Sands guilty of a higher offense based
on the same events violates the Double Jeopardy Clause of the Federal Constitution.
See State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2001).
