               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.
