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STATE v. MANJIKIAN

Cite as 303 Neb. 100

State of Nebraska, appellee, v.

Vazgen Manjikian, appe

___ 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 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 

Nebraska Supreme Court Online Library

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

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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 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 
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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: Sus

I. Strong, Judge. Affirm

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, Sta

Papik, and Freudenberg

Heavican, 

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.
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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 
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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. § 28-201(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 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 

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, 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

[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 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

[4,5] 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.

[6] Under our holding in State v. Lane,

7

 to support a finding that a defendant has entered a guilty plea freely, intelligently, 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 support, 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 accepting a plea in the form of the American Bar Association’s 

Standard 14-1.4(a)(vi), requiring the court to advise the defendant 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, intelligently, 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 requirement 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 significant 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 selfincrimination. 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 principles. 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 property, 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 constitutional 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 necessarily 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 defining 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 offending 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 punishment, did not prevent the State from seeking a criminal 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 defendant 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 information 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 information. He asserted that the prosecution for possession of methamphetamine was barred, because said prosecution would 

expose him to double jeopardy.

In Spotts, we reiterated that forfeiture actions pursuant to § 28-431 constituted criminal proceedings. We ultimately 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 cumulative punishments, the Double Jeopardy Clause is not violated 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 abandonment 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 procedural requirements for such forfeitures and waives his 

rights as they relate 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)[.]

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 informative 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 constitutional.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 agreement; 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 discretion in sentencing him to a term of incarceration. Manjikian 

argues that the district court relied on improper information contained in the presentence investigation and on comments 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 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.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) 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.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 appropriate 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 presentence report and comments made by the prosecution regarding 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 determining the sentence to be imposed. The presentence report 

contains significant findings regarding Manjikian’s violent 

criminal history, unauthorized possession of weapons, previous flight from justice, and propensity for poor impulse control 

and decisionmaking. Based on the facts and circumstances surrounding 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 decision to sentence him to 180 days in jail is without merit.

Ineffective Assistance of Counsel.

Lastly, Manjikian claims that he received ineffective assistance 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 ineffective 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 pleading guilty.50

The likelihood of the defense’s success had the defendant 

insisted on going to trial is relevant to the prejudice analysis51; it is relevant to the consideration of whether a rational 

defendant would have insisted on going to trial.52 The likelihood 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 convicted 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 evidentiary 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 controlled 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 contends that such claims are betrayed by Manjikian’s own admission 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 attention 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 voluntarily 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 Franco59 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 agreement, 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’ imprisonment 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 previously 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 written 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.

Affirmed

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).