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State v. Manjikian

Supreme Court of Nebraska

May 10, 2019

State of Nebraska, appellee,
v.
Vazgen Manjikian, appellant.

         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 sentence 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 matters submitted for disposition.

         4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective 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 determine 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 [303 Neb. 101] 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 punishments, the Double Jeopardy Clause is not violated as long as the cumulative punishments are imposed in a single proceeding.

         10. Waiver: Constitutional Law: Intent: Presumptions: Words and Phrases. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege, and courts indulge every reasonable 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 contest 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 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) 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 defendant's demeanor and attitude and all the facts and circumstances surrounding 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 convicted because of a guilty plea or a plea of no contest, a court will [303 Neb. 102] consider an allegation that the plea was the result of ineffective assistance of counsel.

         17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty plea, 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 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 determining 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.

          Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, PC, 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 constitutional grounds. We affirm.

         [303 Neb. 103] 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 attempting 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 [303 Neb. 104] substance as "Adderall," it was later confirmed to be methamphetamine. 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 currency was found stuffed inside three 64-ounce brownie mix cans that were resealed to look as if they were in their original condition.

         On March 27, 2018, Manjikian was charged by information in Lancaster County District Court with possession of a controlled 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 possession of a controlled substance (methamphetamine) under Neb. Rev. Stat. § 28-20 l(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 writing 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] pursuant 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 forfeiture, . . . 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 [303 Neb. 105] 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, coercion, 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, voluntarily, 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 constitutional protections against double jeopardy; and (3) abusing its discretion in sentencing him to a term of incarceration. Manjikian also contends that he received ineffective assistance of trial counsel.

         STANDARD OF REVIEW

         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]

         [303 Neb. 106] 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 reasons 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]

         Whether a claim of ineffective 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 determine 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]

         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 proceeded to trial. Manjikian argues that the court's failure in this respect results in his plea not being made freely, voluntarily, knowingly, and intelligently.

         Under our holding in State v. Lane, [7] to support a finding that a defendant has entered a guilty plea freely, intelligently, voluntarily, and understanding, a court must inform [303 Neb. 107] 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 ...


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