State v. Manjikian

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/10/2019 09:06 AM CDT

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Nebraska Supreme Court A dvance Sheets

303 Nebraska R eports

STATE v. MANJIKIAN

Cite as 303 Neb. 100

State of Nebraska, appellee, v.

Vazgen M anjikian, appellant.

___ N.W.2d ___

Filed May 10, 2019. No. S-18-858.

1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding

whether to accept guilty pleas, and an appellate court will reverse the

trial court’s determination only in case of an abuse of discretion.

2. Sentences: Appeal and Error. An appellate court will not disturb a sen-

tence imposed within the statutory limits absent an abuse of discretion

by the trial court.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when

the reasons or rulings of a trial judge are clearly untenable, unfairly

depriving a litigant of a substantial right and denying just results in mat-

ters submitted for disposition.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-

fective assistance of trial counsel may be determined on direct appeal is

a question of law.

5. ____: ____. In reviewing claims of ineffective assistance of counsel on

direct appeal, an appellate court decides only whether the undisputed

facts contained within the record are sufficient to conclusively deter-

mine whether counsel did or did not provide effective assistance and

whether the defendant was or was not prejudiced by counsel’s alleged

deficient performance.

6. Pleas. To support a finding that a defendant has entered a guilty plea

freely, intelligently, voluntarily, and understandingly, a court must inform

a defendant about (1) the nature of the charge, (2) the right to assistance

of counsel, (3) the right to confront witnesses against the defendant, (4)

the right to a jury trial, and (5) the privilege against self-incrimination.

The record must also establish a factual basis for the plea and that the

defendant knew the range of penalties for the crime charged.

7. Double Jeopardy. The Double Jeopardy Clause protects against three

distinct abuses: (1) a second prosecution for the same offense after

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acquittal, (2) a second prosecution for the same offense after conviction,

and (3) multiple punishments for the same offense.

8. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy

attaches (1) in a case tried to a jury, when the jury is impaneled and

sworn; (2) when a judge, hearing a case without a jury, begins to hear

evidence as to the guilt of the defendant; or (3) at the time the trial court

accepts the defendant’s guilty plea.

9. Double Jeopardy: Legislature: Intent: Sentences. Where the

Legislature has demonstrated an intent to permit cumulative punish-

ments, the Double Jeopardy Clause is not violated as long as the cumu-

lative punishments are imposed in a single proceeding.

10. Waiver: Constitutional Law: Intent: Presumptions: Words and

Phrases. A waiver is ordinarily an intentional relinquishment or aban-

donment of a known right or privilege, and courts indulge every reason-

able presumption against waiver of fundamental constitutional rights.

11. Waiver. The determination of whether there has been an intelligent

waiver of a right must depend, in each case, upon the particular facts

and circumstances surrounding that case, including the background,

experience, and conduct of the accused.

12. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-

test waives every defense to a charge, whether the defense is procedural,

statutory, or constitutional.

13. Sentences. When imposing a sentence, the sentencing court is to con-

sider the defendant’s (1) age, (2) mentality, (3) education and experi-

ence, (4) social and cultural background, (5) past criminal record or

record of law-abiding conduct, and (6) motivation for the offense, as

well as (7) the nature of the offense, and (8) the amount of violence

involved in the commission of the crime. The sentencing court is not

limited to any mathematically applied set of factors.

14. ____. The appropriateness of a sentence is necessarily a subjective

judgment and includes the sentencing judge’s observation of the defend­

ant’s demeanor and attitude and all the facts and circumstances sur-

rounding the defendant’s life.

15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that

counsel’s performance was deficient and that this deficient performance

actually prejudiced his or her defense.

16. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally,

a voluntary guilty plea waives all defenses to a criminal charge.

However, in a postconviction proceeding brought by a defendant con-

victed because of a guilty plea or a plea of no contest, a court will

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consider an allegation that the plea was the result of ineffective assist­

ance of counsel.

17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-

tion is based upon a guilty plea, the prejudice requirement for an inef-

fective assistance of counsel claim is satisfied if the defendant shows a

reasonable probability that but for the errors of counsel, the defendant

would have insisted on going to trial rather than pleading guilty.

18. Effectiveness of Counsel: Records: Appeal and Error. The fact that

an ineffective assistance of counsel claim is raised on direct appeal does

not necessarily mean that it can be resolved on direct appeal. The deter-

mining factor is whether the record is sufficient to adequately review

the question.

19. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An

ineffective assistance of counsel claim will not be resolved on direct

appeal if it requires an evidentiary hearing.

Appeal from the District Court for Lancaster County: Susan

I. Strong, Judge. Affirmed.

Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz &

Conway, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R.

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Following a traffic stop in Lancaster County, Nebraska,

Vazgen Manjikian was charged by information with possession

of a controlled substance, a Class IV felony. During the course

of the traffic stop, an amount of amphetamine, a Schedule

II controlled substance, was located, along with $234,956.

Pursuant to a plea agreement, Manjikian was charged by

amended information with one count of attempted possession

of a controlled substance, a Class I misdemeanor. Manjikian

now appeals his conviction and sentence on various constitu-

tional grounds. We affirm.

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STATE v. MANJIKIAN

Cite as 303 Neb. 100

BACKGROUND

On January 24, 2018, a Lancaster County sheriff’s deputy

observed a vehicle, bearing New York license plates, traveling

westbound on Interstate 80 at mile marker 394 in Lancaster

County. The deputy noted that the vehicle was following

another vehicle at a distance of .39 seconds and at a speed of

73 miles per hour. The deputy initiated a traffic stop on the

vehicle for following too closely. As the deputy was attempt-

ing to stop the vehicle, he observed the two occupants making

furtive movements in the area around the center console of

the vehicle.

Upon contacting the vehicle’s occupants, the deputy noted

the odor of raw marijuana emanating from the vehicle. The

deputy identified the driver as Kevin Conrado, and the only

passenger in the vehicle was identified as Manjikian. Conrado

was asked for the vehicle’s registration and paperwork, which

he retrieved from a backpack in the back seat. The vehicle’s

rental agreement identified the renter as an individual who

was later determined to be the brother of Manjikian. Further

investigation revealed that following a murder conviction in

California, Manjikian’s brother had been incarcerated for a

period of time preceding the initial rental period of the vehicle.

Upon inspecting the vehicle’s paperwork and rental agreement,

the deputy noted that the rental agreement had expired 4 days

prior, on January 20, 2018.

A search of the vehicle resulted in the discovery of two

baggies of suspected methamphetamine found in the console

area between the driver and passenger seats. The content in the

baggies, as confirmed by the Nebraska State Patrol laboratory,

was found to be methamphetamine. Deputies noted that one

of the baggies was observed to have an end ripped open. The

contents of that baggie appeared to have been dumped into an

open drink container which was found in the vehicle and which

held an unknown liquid.

Manjikian later admitted to a deputy that he possessed a

controlled substance in the vehicle; although he referred to the

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substance as “Adderall,” it was later confirmed to be meth-

amphetamine. In addition to the methamphetamine, deputies

also discovered marijuana cigarettes in the center console area

and a total of $234,956 in U.S. currency. Conrado’s backpack

contained $11,300, and Manjikian was in possession of $376,

which was found on his person. The remainder of the cur-

rency was found stuffed inside three 64-ounce brownie mix

cans that were resealed to look as if they were in their origi-

nal condition.

On March 27, 2018, Manjikian was charged by information

in Lancaster County District Court with possession of a con-

trolled substance (amphetamine), a Class IV felony.1 Manjikian

entered a plea of not guilty to the charge.

On June 21, 2018, Manjikian, along with his trial counsel,

appeared before the district court at a change of plea hearing.

The parties advised the district court that they had reached an

agreement wherein Manjikian would plead no contest to an

amended information charging him with attempted posses-

sion of a controlled substance (methamphetamine) under Neb.

Rev. Stat. § 28-201(4)(e) (Reissue 2016) and § 28-416(3), a

Class I misdemeanor. In addition, Manjikian agreed to forfeit

any interest in the $234,956 that was seized during the traffic

stop that led to his arrest. The forfeiture agreement was in writ-

ing and stated, in pertinent part:

Manjikian hereby enters into an agreement with the State

of Nebraska in the above captioned matter and agrees

that any interest he has in said $234,956.00 shall be

forfeited to [U.S. Customs and Border Protection] pur-

suant to federal forfeiture laws. . . . Manjikian consents

to the administrative forfeiture of the $234,956.00 and

will not file a claim for it. In agreeing to such forfeit­

ure, . . . Manjikian waives his rights pursuant to Neb.

Rev. Stat. §28-431 and the procedural requirements for

such forfeitures and waives his rights as they relate

1

See Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2018).

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to claims of double jeopardy pursuant to the United

States Constitution Amendment V, the Nebraska State

Constitution Article I, section 12, and State v. Franco,

257 Neb. 15 (1999);

. . . Manjikian, having consulted with his attorney

in the matter, now waives his rights freely, voluntarily,

knowingly and intelligently without force, threat, coer-

cion, duress, or promises, other than a plea agreement.

Following a hearing in which the court advised Manjikian

of his rights and confirmed his understanding of such, the

district court found that Manjikian’s plea was “freely, volun-

tarily, knowingly and intelligently made” and adjudged him

guilty of the offense. The court then ordered a presentence

investigation and set a date for sentencing.

Manjikian’s sentencing hearing was held on August 29,

2018. At the hearing, the district court sentenced Manjikian to

180 days’ imprisonment, with 2 days’ credit for time served.

Manjikian appeals.

ASSIGNMENTS OF ERROR

In a brief prepared by appellate counsel, Manjikian claims

that the district court erred in (1) finding that Manjikian

made a free, voluntary, knowing, and intelligent plea; (2)

accepting a plea that Manjikian contends violates constitu-

tional protections against double jeopardy; and (3) abusing

its discretion in sentencing him to a term of incarceration.

Manjikian also contends that he received ineffective assist­

ance of trial counsel.

STANDARD OF REVIEW

[1] A trial court is afforded discretion in deciding whether

to accept guilty pleas, and an appellate court will reverse

the trial court’s determination only in case of an abuse of

discretion.2

2

State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).

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[2,3] An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court.3 A judicial abuse of discretion exists when the rea-

sons or rulings of a trial judge are clearly untenable, unfairly

depriving a litigant of a substantial right and denying just

results in matters submitted for disposition.4

[4,5] Whether a claim of ineffective assistance of trial coun-

sel may be determined on direct appeal is a question of law.5 In

reviewing claims of ineffective assistance of counsel on direct

appeal, an appellate court decides only whether the undisputed

facts contained within the record are sufficient to conclusively

determine whether counsel did or did not provide effective

assistance and whether the defendant was or was not preju-

diced by counsel’s alleged deficient performance.6

ANALYSIS

Manjikian’s Free, Voluntary, Knowing,

and Intelligent Plea.

In his first assignment of error, Manjikian contends that the

plea agreement he entered into with the State was not entered

into freely, voluntarily, knowingly, or intelligently. According

to Manjikian, the district court failed to advise him that by

entering into the plea agreement, he waived his right to appeal

any adverse decisions had he filed pretrial motions or pro-

ceeded to trial. Manjikian argues that the court’s failure in this

respect results in his plea not being made freely, voluntarily,

knowingly, and intelligently.

[6] Under our holding in State v. Lane,7 to support a find-

ing that a defendant has entered a guilty plea freely, intelli-

gently, voluntarily, and understandingly, a court must inform

3

State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).

4

State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).

5

State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).

6

Id.

7

State v. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018).

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a defendant about (1) the nature of the charge, (2) the right to

assistance of counsel, (3) the right to confront witnesses against

the defendant, (4) the right to a jury trial, and (5) the privilege

against self-incrimination. The record must also establish a

factual basis for the plea and that the defendant knew the range

of penalties for the crime charged.8

Manjikian now argues, without binding authoritative sup-

port, that the court was also required, during the plea colloquy,

to advise him of the fact that his plea would result in the waiver

of his right to appeal any adverse decision had he filed pretrial

motions or proceeded to trial. Manjikian further contends that

the court was also required to advise him that appellate counsel

and costs would be provided, had he qualified.

Manjikian would have us adopt a new prerequisite to accept-

ing a plea in the form of the American Bar Association’s

Standard 14-1.4(a)(vi), requiring the court to advise the defend­

ant that “by pleading guilty the defendant generally waives the

right to appeal, except the right to appeal a motion that has

been made, ruled upon and expressly reserved for appeal and

the right to appeal an illegal or unauthorized sentence.”9

We have consistently held that the rule to be distilled from

our prior holdings is that in order to support a finding that a

plea of guilty or nolo contendere has been entered freely, intel-

ligently, voluntarily, and knowingly, the court must inform the

defendant concerning the nature of the charge,10 the right to

assistance of counsel,11 the right to confront witnesses against

the defendant,12 the right to a jury trial,13 and the privilege

8

Id.

9

ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4(a)

(vi) at 36 (3d ed. 1999).

10

State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), disapproved on

other grounds, State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

11

State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).

12

Id.

13

Id.

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against self-incrimination.14 The court must also examine the

defendant and determine whether he or she understands the

foregoing.15 Lastly, the court must ensure the record establishes

that there is a factual basis for the plea and that the defendant

knew the range of penalties for the crime with which he or she

is charged.16

As we stated in State v. Irish, “[we recognize] that the work

of the ABA, although good and useful, nevertheless does not

rise to the status of legislative acts or judicial holdings.”17

Through painstaking judicial work, we have established the

minimum requirements for the court to accept a plea as being

entered freely, intelligently, voluntarily, and knowingly.

Additionally, as we indicated in State v. Turner,18 a require-

ment of an item-by-item review of constitutional rights on

a guilty plea is a strained and a too extreme construction of

the U.S. Supreme Court’s holdings in Boykin v. Alabama19

and McCarthy v. United States.20 Both Boykin and McCarthy

dealt with a court’s duties under Fed. R. Crim. P. 11 as it

relates to a defendant’s voluntarily and intelligently made

plea agreement.

Here, the record demonstrates that the district court advised

Manjikian at length about the nature of the charge, made sig-

nificant reference to his right to assistance of counsel, and

advised Manjikian of the right to confront witnesses against

him, the right to a jury trial, and the privilege against self-

incrimination. Beyond the required admonishments enumerated

in Lane, the court went on to specifically warn Manjikian that

14

Id.

15

Irish, supra note 10.

16

Id.

17

Id. at 818, 394 N.W.2d at 882.

18

Turner, supra note 10.

19

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

20

McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418

(1969).

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his plea would waive his right to additional hearings regarding

pretrial motions, had he subsequently decided to make any.

Based on the foregoing analysis, Manjikian’s plea was

entered freely, voluntarily, knowingly, and intelligently. We

decline his invitation to adopt the American Bar Association’s

Standard 14-1.4(a)(vi), and we find his assignment of error to

be without merit.

Double Jeopardy.

Manjikian next assigns that the district court erred and

abused its discretion in accepting his no contest plea. Manjikian

contends that such acceptance violated double jeopardy princi-

pals. Specifically, Manjikian argues that our precedent in State

v. Spotts 21 acts to bar the State from seeking both forfeiture

and subsequent criminal prosecution.

At oral arguments, for the first time, the State argued that

the money seized during the traffic stop was abandoned prop-

erty, because Manjikian disclaimed ownership of the money in

a statement to law enforcement. The State further argues that

Manjikian cannot now claim double jeopardy applies because

of the forfeiture of the funds that he had earlier proclaimed

were not his. The State’s contention regarding abandonment

was not discussed below, nor was it specifically assigned

in their brief. We proceed, therefore, to analyze Manjikian’s

double jeopardy claim.

The U.S. Supreme Court has noted that the constitutional

prohibition against double jeopardy was designed to protect

an individual from being subjected to the hazards of trial and

possible conviction more than once for an alleged offense.22 In

Benton v. Maryland,23 the Court applied the 5th Amendment’s

21

State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999).

22

Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199

(1957).

23

Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707

(1969).

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protection against double jeopardy to the states through the

Due Process Clause of the 14th Amendment, noting that the

protection “represents a fundamental ideal in our constitu-

tional heritage.”24

[7,8] The Double Jeopardy Clause protects against three

distinct abuses: (1) a second prosecution for the same offense

after acquittal, (2) a second prosecution for the same offense

after conviction, and (3) multiple punishments for the same

offense.25 In Nebraska, jeopardy attaches (1) in a case tried to a

jury, when the jury is impaneled and sworn; (2) when a judge,

hearing a case without a jury, begins to hear evidence as to the

guilt of the defendant; or (3) at the time the trial court accepts

the defendant’s guilty plea.26

Manjikian’s double jeopardy claim in this case appears to be

based on the prohibition of multiple punishments for the same

offense, i.e., the seizure and jail sentence.

In State v. Franco,27 we stated that since State v. One 1987

Toyota Pickup,28 we have determined that the Legislature

intended forfeiture actions pursuant to Neb. Rev. Stat.

§ 28-431 (Reissue 2008) to be criminal proceedings. In

Franco, a criminal defendant was charged with a crime and

faced the forfeiture of personal property seized during his

arrest. The district court concluded that the crime and the

actions leading to forfeiture constituted separate criminal

offenses so that the prosecution of both was not barred by

double jeopardy. On appeal, this court disagreed, instead

holding that a forfeiture action pursuant to § 28-431 necessar-

ily required the proof of a violation of chapter 28, article 4,

of the Nebraska Revised Statutes. In Franco, the defendant’s

24

Id., 395 U.S. at 794.

25

Spotts, supra note 21.

26

State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).

27

State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999).

28

State v. One 1987 Toyota Pickup, 233 Neb. 670, 447 N.W.2d 243 (1989),

overruled, Spotts, supra note 21.

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violation of § 28-416(1)(a)—the statute which charged him

with possession of a controlled substance—had to be proved.

We concluded that § 28-416(1)(a) was subsumed within

§ 28-431 and that as such, the two statutes were not defin-

ing separate offenses. In short, we held that the State could

not seek forfeiture of property and then proceed in a criminal

prosecution arising from the same set of facts without offend-

ing double jeopardy.29

[9] However, we went on to note that the Blockburger

test, enumerated in Blockburger v. United States,30 which is

applied to prevent double punishment in situations where

the Legislature intended to provide only for a single pun-

ishment, did not prevent the State from seeking a crimi-

nal prosecution and a forfeiture in the same proceeding if

there was legislative intent to do so. We concluded that the

Nebraska Legislature intended for punishments pursuant to

§§ 28-416(1)(a) and 28-431 to be imposed cumulatively.31

Where the Legislature has demonstrated an intent to permit

cumulative punishments, the Double Jeopardy Clause is not

violated as long as the cumulative punishments are imposed

in a single proceeding.32

In Spotts, we reinforced our holding in Franco. The defend­

ant in Spotts was arrested by the Nebraska State Patrol for

being in possession of a controlled substance with the intent

to deliver, a Class III felony. Before his criminal informa-

tion was filed, the State sought forfeiture of $14,177 found

on the defendant’s person at the time of his arrest. Following

his initial appearance at his criminal trial, he filed a plea in

bar alleging in pertinent part that the conduct which exposed

him to forfeiture of the $14,177 was the same conduct which

29

See Franco, supra note 27.

30

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306

(1932).

31

Franco, supra note 27.

32

Id.

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exposed him to liability and punishment for the possession

of methamphetamine. The defendant alleged that in order to

forfeit the money found on his person, he would have had to

commit one and the same offense as charged in the informa-

tion. He asserted that the prosecution for possession of meth-

amphetamine was barred, because said prosecution would

expose him to double jeopardy.

In Spotts, we reiterated that forfeiture actions pursu-

ant to § 28-431 constituted criminal proceedings. We ulti-

mately found that Franco controlled, concluding that the

Nebraska Legislature intended for punishments pursuant to

§§ 28-416(1)(a) and 28-431 be imposed cumulatively. Where

the Legislature has demonstrated an intent to permit cumu-

lative punishments, the Double Jeopardy Clause is not vio-

lated as long as the cumulative punishments are imposed in

a single proceeding. In Spotts, we ultimately agreed with

the district court when it stated: “‘[I]f [a] forfeiture action

arises out of the underlying criminal case, the State is placed

in the position of having to decide whether to pursue the

forfeiture proceeding or whether to pursue the criminal

proceeding.’”33

We observe that in 2016, the Legislature revised §§ 28-416

and 28-431.34 Because we find that Manjikian expressly

waived his constitutional right against double jeopardy when

he entered into the plea agreement,35 we express no opinion as

to whether the revisions enacted by the Legislature change the

viability of Franco and Spotts. Therefore we need not venture

into a comprehensive analysis under Spotts.

[10,11] The U.S. Supreme Court has indicated that a

waiver is ordinarily an intentional relinquishment or aban-

donment of a known right or privilege, and courts indulge

every reasonable presumption against waiver of fundamental

33

Spotts, supra note 21, 257 Neb. at 49, 595 N.W.2d at 262.

34

See 2016 Neb. Laws, L.B. 1106, §§ 5 and 6.

35

See State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015).

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constitutional rights.36 The determination of whether there has

been an intelligent waiver of a right must depend, in each case,

upon the particular facts and circumstances surrounding that

case, including the background, experience, and conduct of

the accused.37

In this case, Manjikian’s plea agreement in relevant part

specifically stated:

In agreeing to such forfeiture, . . . Manjikian waives his

rights pursuant to Neb. Rev. Stat. §28-431 and the pro-

cedural requirements for such forfeitures and waives his

rights as they relate to claims of double jeopardy pursu-

ant to the United States Constitution Amendment V, the

Nebraska State Constitution Article I, section 12, and

State v. Franco, 257 Neb. 15 (1999)[.]

Based on the record, Manjikian has some formal education

and has previously been involved in the California criminal

justice system. Beyond his personal history which is inform­

ative of his background and understanding, when asked by

the court whether he understood the plea agreement and his

rights, Manjikian consistently answered that he was aware

of the particular details of the agreement and had entered the

agreement voluntarily.

[12] We have repeatedly held that the voluntary entry of a

guilty plea or a plea of no contest waives every defense to a

charge, whether the defense is procedural, statutory, or con-

stitutional.38 This includes the right against double jeopardy;

we have held that such exceptions include the defenses of

insufficiency of the indictment, information, or complaint;

ineffective assistance of counsel; and lack of jurisdiction.39

36

See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 2d 1461

(1938). See, also, Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L.

Ed. 2d 1 (1987) (Brennan, J., dissenting).

37

Johnson, supra note 36.

38

See State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).

39

State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).

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The record in this case is clear. Manjikian waived his right

against double jeopardy when he entered into the plea agree-

ment; therefore, Manjikian’s assignment of error with regard

to being put twice in jeopardy is without merit.

Sentence.

Manjikian next assigns as error that the court abused its dis-

cretion in sentencing him to a term of incarceration. Manjikian

argues that the district court relied on improper informa-

tion contained in the presentence investigation and on com-

ments made by the prosecution alleging, without evidence,

that Manjikian was involved in organized crime. His argument

appears to further contend that probation would have been the

appropriate sentence in this case.

An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court.40 A judicial abuse of discretion exists when the rea-

sons or rulings of a trial judge are clearly untenable, unfairly

depriving a litigant of a substantial right and denying just

results in matters submitted for disposition.41

[13,14] When imposing a sentence, the sentencing court is

to consider the defendant’s (1) age, (2) mentality, (3) education

and experience, (4) social and cultural background, (5) past

criminal record or record of law-abiding conduct, and (6) moti-

vation for the offense, as well as (7) the nature of the offense,

and (8) the amount of violence involved in the commission of

the crime.42 However, the sentencing court is not limited to any

mathematically applied set of factors.43 The appropriateness of

a sentence is necessarily a subjective judgment and includes

the sentencing judge’s observation of the defendant’s demeanor

40

Steele, supra note 3.

41

Clemens, supra note 4.

42

State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017).

43

State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

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and attitude and all the facts and circumstances surrounding the

defendant’s life.44

Here, the record establishes that the district court reviewed

the presentence investigation report and considered all appro-

priate sentencing factors. The comments made by the district

court noted at sentencing that the “facts and circumstances of

this case” were “somewhat disturbing.” Although the presen-

tence report and comments made by the prosecution regard-

ing Manjikian’s alleged connections to organized crime were

largely unsubstantiated, there is no indication that the district

court’s sentence turned solely on those claims.

The court’s comments at sentencing do not indicate that the

district court considered any inappropriate factors in deter-

mining the sentence to be imposed. The presentence report

contains significant findings regarding Manjikian’s violent

criminal history, unauthorized possession of weapons, previ-

ous flight from justice, and propensity for poor impulse control

and decisionmaking. Based on the facts and circumstances sur-

rounding Manjikian’s life and the crime charged, we cannot say

that the district court abused its discretion in sentencing him to

180 days’ incarceration.

Manjikian’s assignment of error regarding the court’s deci-

sion to sentence him to 180 days in jail is without merit.

Ineffective Assistance of Counsel.

Lastly, Manjikian claims that he received ineffective assist­

ance of counsel in violation of his 6th Amendment right as

applied to the states through the Due Process Clause of the

14th Amendment. Manjikian contends that his trial counsel’s

performance fell below the range of competence demanded of

attorneys in criminal cases.

Specifically, Manjikian points to four instances in particular

in which he claims trial counsel was deficient. First, Manjikian

argues that his codefendant had signed a written confession

44

Id.

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and was prepared to testify that the controlled substance was

not Manjikian’s. Manjikian argues that trial counsel was inef-

fective in advising Manjikian that his codefendant’s statement

and proposed testimony would not be sufficient to convince a

jury. Second, Manjikian claims that trial counsel advised him

a jury would likely convict him based on his being from out

of state and that this erroneous advice caused Manjikian to

enter into a plea agreement rather than proceed to trial. Third,

Manjikian claims that trial counsel incorrectly advised him that

observing his codefendant “do something” with the substance

upon the officer’s initiating the traffic stop was sufficient

evidence to sustain a conviction for the crime with which he

was charged, leading him to forgo his right to trial.45 Lastly,

Manjikian contends that his counsel failed to protect his rights

against double jeopardy by not filing a plea in bar.

[15] To prevail on a claim of ineffective assistance of

counsel under Strickland v. Washington,46 the defendant must

show that counsel’s performance was deficient and that this

deficient performance actually prejudiced his or her defense.47

The two prongs of this test may be addressed in either

order, and the entire ineffective assistance analysis should

be viewed with a strong presumption that counsel’s actions

were reasonable.48

[16,17] Normally, a voluntary guilty plea waives all

defenses to a criminal charge. However, in a postconviction

proceeding brought by a defendant convicted because of a

guilty plea or a plea of no contest, a court will consider an

allegation that the plea was the result of ineffective assistance

of counsel.49 When a conviction is based upon a guilty plea,

45

Brief for appellant at 20.

46

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

47

State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

48

Id.

49

State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).

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the prejudice requirement for an ineffective assistance of

counsel claim is satisfied if the defendant shows a reasonable

probability that but for the errors of counsel, the defendant

would have insisted on going to trial rather than plead-

ing guilty.50

The likelihood of the defense’s success had the defendant

insisted on going to trial is relevant to the prejudice analy-

sis51; it is relevant to the consideration of whether a rational

defend­ant would have insisted on going to trial.52 The like-

lihood of the defense’s success had the defendant gone to

trial should be considered along with other factors, such as

the likely penalties the defendant would have faced if con-

victed at trial, the relative benefit of the plea bargain, and the

strength of the State’s case.53

Where, as here, appellate counsel is different from trial

counsel, a defendant must raise on direct appeal any issue of

ineffective assistance of trial counsel which is known to the

defendant or is apparent from the record, or the issue will be

procedurally barred on postconviction review.54 An ineffective

assistance of counsel claim is raised on direct appeal when the

claim alleges deficient performance with enough particularity

for (1) an appellate court to make a determination of whether

the claim can be decided upon the trial record and (2) a district

court later reviewing a petition for postconviction relief to be

able to recognize whether the claim was brought before the

appellate court.55

[18,19] The fact that an ineffective assistance of counsel

claim is raised on direct appeal does not necessarily mean

50

State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).

51

See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).

52

Id.

53

Id.

54

State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

55

Ash, supra note 47.

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that it can be resolved on direct appeal.56 The determining

factor is whether the record is sufficient to adequately review

the question.57 An ineffective assistance of counsel claim

will not be resolved on direct appeal if it requires an eviden-

tiary hearing.58

In this case, the State submits that the record is sufficient to

resolve Manjikian’s claims of ineffective assistance of counsel

and contends that Manjikian’s claims are without merit. In

regard to Manjikian’s claim that his codefendant had signed

a written confession and was prepared to testify that the con-

trolled substance was not Manjikian’s, the State directs our

attention to Manjikian’s own admissions which clearly refute

any potential testimony of his codefendant. As to Manjikian’s

claim that trial counsel’s statement as to the risk of conviction

based on Manjikian’s being from out of state, the State con-

tends that such claims are betrayed by Manjikian’s own admis-

sion to law enforcement. The State argues that Manjikian’s

admissions would have carried substantial weight which alone

could have led to a conviction. The State directs our atten-

tion to the recorded jail telephone call between Manjikian and

a sheriff’s deputy in which Manjikian admitted that he had

been in possession of “Adderall,” an admission that supported

Manjikian’s plea.

In regard to Manjikian’s claim that trial counsel failed to

protect his right against double jeopardy, the record clearly

refutes his claim, because he knowingly, intentionally, and vol-

untarily agreed, as a part of the plea agreement with the State,

to forfeit the money to the federal government. Moreover,

as noted above, the plea agreement specifically recited that

Manjikian “waives his rights as they relate to claims of

double jeopardy pursuant to the United States Constitution

56

Id.

57

Id.

58

Id.

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Amendment V, [and] the Nebraska State Constitution Article I,

section 12.” Therefore, unlike the defendants in Franco 59 and

Spotts,60 Manjikian was not subjected to successive criminal

prosecutions, but instead agreed to the forfeiture and reduced

criminal charge in exchange for his plea.

Given the fact that Manjikian and his codefendant were

transporting $234,956 on their persons, as well as in various

sealed containers, while being in possession of an amount

of methamphetamine and in a vehicle rented to Manjikian’s

brother, who was incarcerated at the time of the rental agree-

ment, it cannot be said that Manjikian’s defense had a strong

likelihood of success on the merits. This is especially true given

the fact that Manjikian admitted to law enforcement that he had

been in possession of “Adderall,” a controlled substance.

Had the plea agreement not been reached, Manjikian

was facing a charge of possession of a controlled substance

(amphetamine), a Class IV felony under § 28-416(3), which

carries a potential maximum sentence of 2 years’ imprison-

ment and 12 months’ postrelease supervision or a $10,000 fine,

or both, and a minimum sentence of 9 months’ postrelease

supervision, if imprisonment is imposed.61 In light of the

potential penalty he faced, had Manjikian not pled to the lower

Class I misdemeanor, the weight of the evidence and the fact

that our ineffective assistance analysis is viewed with a strong

presumption that counsel’s actions were reasonable, we cannot

say that Manjikian’s trial counsel was ineffective in regard to

the plea agreement.

Further, we cannot say that trial counsel was incorrect

in advising Manjikian regarding possession. We have previ-

ously stated that “possession of an illegal substance can be

inferred from a vehicle passenger’s proximity to the substance

59

Franco, supra note 27.

60

Spotts, supra note 21.

61

See Neb. Rev. Stat. § 28-105 (Reissue 2016).

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or other circumstantial evidence that affirmatively links the

passenger to the substance.”62 Given this prior holding and

Manjikian’s admission, we cannot say that Manjikian’s claim

that his codefend­ant was willing to testify and provide a writ-

ten statement as to being the alleged true possessor of the

controlled substance rises to the level of establishing that

Manjikian suffered actual prejudice as a result of choosing to

enter a plea instead of risking a trial. Trial counsel is afforded

due deference to formulate trial strategy and tactics, and we

are not to second-guess trial counsel’s reasonable strategic

decisions when reviewing claims of ineffective assistance

of counsel.63

CONCLUSION

The district court did not err in finding that Manjikian made

a free, voluntary, knowing, and intelligent plea. Additionally,

the district court did not err in accepting the plea as it did not

violate double jeopardy, because Manjikian waived his rights

as evidenced by the language of the plea agreement. Further,

the district court did not abuse its discretion in sentencing

Manjikian to a term of incarceration. Lastly, Manjikian did

not receive ineffective assistance of trial counsel.

The decision of the district court is affirmed.

A ffirmed.

62

State v. Draganescu, 276 Neb. 448, 478, 755 N.W.2d 57, 85 (2008).

63

See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).