State v. Manjikian
| Decision Date | 10 May 2019 |
| Docket Number | No. S-18-858.,S-18-858. |
| Citation | 303 Neb. 100,927 N.W.2d 48 |
| Parties | STATE of Nebraska, appellee, v. Vazgen MANJIKIAN, appellant. |
| Court | Nebraska Supreme Court |
Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.
Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
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.
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 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:
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.
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.
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
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
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 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.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 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...
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...will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State......
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