State v. Manjikian , 303 Neb. 100 ( 2019 )


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    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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    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-
    ples. 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
    
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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
    
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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
    
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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).