                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 EDMOND PAUL PRICE,                                   No. 64281
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                                                                                FILED
                 Respondent.                                                    MAY 1 0 2016
                                                                              TRACE K LINDEMAN
                                                                           CLERK OF SUPREME COURT
                                       ORDER OF LIMITED REMAND             BY
                                                                                DEPUTY CLERK

                             This is an appeal from a judgment of conviction, pursuant to a
                 jury verdict, of conspiracy to commit kidnapping, conspiracy to commit
                 robbery, false imprisonment with a deadly weapon, burglary while in the
                 possession of a deadly weapon, robbery with the use of a deadly weapon,
                 and battery with use of a deadly weapon resulting in substantial bodily
                 harm Eighth Judicial District Court, Clark County; James Crockett,
                 Judge. We order a limited remand for an evidentiary hearing on whether
                 appellant Edmond Price's right to a speedy trial under the Interstate
                 Agreement on Detainers was violated and retain jurisdiction over all other
                 issues raised by Price.
                             On June 26, 2010, Ronald Wall and Price met in a hotel room
                 at Whiskey Pete's in Primm, Nevada, where Wall intended to buy gold
                 from Price. Evidence adduced at trial showed that, at some point during
                 the transaction, Price and his associate, Victoria Edelman, attacked Wall
                 and beat him with a variety of items they found in the hotel room.' After


                      'Edelman was originally a codefendant in this case. However, on
                 August 9, 2011, the district court granted her motion to sever.

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                Wall stopped struggling, they tied him up using duct tape, electrical tape,
                and a phone cord. They took Wall's money that he brought to purchase
                the gold from Price and left him bleeding on the hotel room floor.
                            In August 2010, after the underlying incident in Primm, Price
                was in a California prison serving time on an unrelated matter. On
                October 20, 2010, Price was charged for the crimes he allegedly committed
                against Wall. In February 2011, the Clark County District Attorney's
                Office requested a detainer be lodged against Price, who was still in prison
                in California. On February 23, 2011, pursuant to the Interstate
                Agreement on Detainers 2 (TAD), Price initiated an Article III request for
                final disposition of untried indictments, informations, or complaints. The
                State received Price's request on April 29, 2011. However, for reasons
                discussed below, Price's trial did not begin until May 20, 2013. On May
                29, 2013, a jury found Price guilty of conspiracy to commit kidnapping,
                conspiracy to commit robbery, false imprisonment with a deadly weapon,
                burglary while in the possession of a deadly weapon, robbery with the use
                of a deadly weapon, and battery with the use of a deadly weapon resulting
                in substantial bodily harm.
                The Interstate Agreement on Detainers
                            Article III of the TAD "provides that once Nevada files a
                detainer against a prisoner in another state, the prisoner may request
                timely disposition of the untried indictment upon which the detainer was

                      2"The TAD is an interstate compact approved by the United States
                Congress to which Nevada is a party." Wilson v. State, 121 Nev. 345, 363,
                114 P.3d 285, 297 (2005). It "specifies the procedures by which a prisoner
                may request speedy disposition of the charges pending against him in a
                jurisdiction other than where he is incarcerated." Id. It "is codified in
                Nevada law at NRS 178.620." Id.

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                based." 3 Diaz v. State, 118 Nev. 451, 453-54, 50 P.3d 166, 167 (2002).
                After receiving the request for disposition, "the State has 180 days to bring
                the defendant to trial" Id. at 454, 50 P.3d at 167. If the State does not
                meet this requirement, "the appropriate court of the jurisdiction where the
                indictment, information or complaint has been pending shall enter an
                order dismissing the same with prejudice, and any detainer based thereon
                shall cease to be of any force or effect." NRS 178.620 (Art. V(c)).
                              "Article III(a)'s 180-day time period does not begin to run until
                a prisoner's request for final disposition of the charges against him is
                actually delivered to the court and the prosecuting officer of the
                jurisdiction that lodged the detainer against him." McNelton v. State, 115
                Nev. 396, 414, 990 P.2d 1263, 1275 (1999). Further, the 180-day timeline
                may be tolled for the following reasons:
                              (1) to allow the trial court to grant any necessary
                              and reasonable continuance for good cause shown
                              in open court with the defendant or his counsel
                              present, (2) for as long as the defendant is unable
                              to stand trial, or (3) for any period of delay in
                              bringing the defendant to trial caused by the

                      3 The  State argued that Price waived his TAD right to a speedy trial
                because he purposefully delayed trial and pursued extraordinary relief
                through various pretrial writs of habeas corpus and other motions. See
                Snyder v. State, 103 Nev. 275, 277, 738 P.2d 1303, 1305 (1987) ("[A]
                prisoner may waive his TAD rights if he affirmatively requests to be
                treated in a manner contrary to the procedures prescribed by the TAD.").
                However, a defendant does not waive his TAD rights simply by litigating
                his case and any delays caused by the defendant are not counted against
                the TAD timeline. See Haigler v. United States, 531 A.2d 1236, 1242 (D.C.
                1987) ("Appellant could not be understood to waive his rights under the
                TAW simply because he exercised his right to make pretrial
                motions. . . . [Instead,' Mlle time consumed in consideration of appellant's
                motions . . . is simply not counted.").

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                            defendant's request or to accommodate the
                            defendant.
                Saffold v. State, 521 So. 2d 1368, 1371 (Ala. Crim. App. 1987) (internal
                citations omitted). Tolling periods due to the defendant do not last
                indefinitely, but only for the time it takes to resolve the defendant's issue.
                See Diaz, 118 Nev. at 453-55, 50 P.3d at 167-68.
                April 29, 2011 - August 9, 2011: timeline ran 102 days
                             Though arguing throughout the proceedings that the 180-day
                timeline started on April 29, 2011, as that was the day the State received
                Price's Article III request, the State misread Price's brief as conceding that
                the timeline started on August 9, 2011. Price in no way made such a
                concession. At oral argument, the State admitted that the timeline ran
                from April 29, 2011, until August 9, 2011. Price conceded in his brief that
                the timeline began tolling on August 9, 2011, because he consented to
                Edelman's request for a continuance. 4 Thus, the parties appear to agree
                that 102 days of the 180-day TAD period ran between April 29 and August
                9, 2011.
                August 9, 2011- June 14, 2012: time tolled
                            Between August 9, 2011, and May 17, 2012, Price concedes
                that he raised several issues requiring litigation, such that the delay was


                       4At oral argument, Price changed his position and argued that
                September 22, 2011, was when the timeline began tolling, not August 9,
                2011. He stated that the caselaw was split on whether agreeing to a
                codefendant's continuance actually tolls the time. However, he did not cite
                to any cases showing this split in authority. Therefore, we will not
                address this argument. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d
                3, 6 (1987) ("It is appellant's responsibility to present relevant authority
                and cogent argument; issues not so presented need not be addressed by
                this court.").

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                 attributable to him, tolling the 180-day timeline. On May 17, 2012, the
                 district court, following our order, dismissed Price's original indictment.
                 See Price v. Eighth Judicial Dist. Court, Docket No. 60440 (Order
                 Granting Petition, May 10, 2012). On May 25, 2012, Price was reindicted.
                 Price concedes that these 8 days can also be attributed to him for tolling
                 purposes.
                             From May 25, 2012, to June 5, 2012, Price disputed whether
                 the district court could remand him on the new indictment. On June 14,
                 2012, Price was arraigned on the new indictment. Price took
                 "responsibility for his pre-arraignment delay on the new case."
                 June 14, 2012 - July 30, 2012: time ran 46 days
                             Both parties began the 180-day timeline again on June 14,
                 2012. At the June 14 hearing, trial was set for July 30, 2012. Both
                 parties agreed in their briefs that the 180-day timeline was running
                 during this 46-day period. 5
                 July 30, 2012 - January 28, 2013: time tolled
                             On July 30, 2012, Price requested a continuance after the
                 State disclosed Edelman as a cooperating witness. Trial was set again for
                 January 28, 2013. Since this continuance was arguably due to Price, the
                 TAD timeline was tolled once again. 6


                       5At oral argument, the State changed its position and argued that
                 July 6, 2012, was when the time began tolling again instead of July 30,
                 2012. We will not address this argument because, as discussed below, the
                 24-day difference is immaterial for our purposes.

                       6 Price argued at oral argument, not in his brief, that this time
                 should not count toward the IAD timeline because he was forced to ask for
                 the continuance due to the State's naming of Edelman as a witness five
                 days before trial. See Snyder, 103 Nev. at 279, 738 P.2d at 1306 (deciding
                                                                   continued on next page...
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                   January 28, 2013 - January 31, 2013: time ran 3 days
                                On January 24, 2013, the district court vacated the January
                   28, 2013, trial date after this court stayed the district court's erroneous
                   order to consider the State's emergency petition for a writ of mandamus
                   regarding that order. On January 25, 2013, this court granted the
                   petition.   See State v. Eighth Judicial Dist. Court, Docket No. 62464
                   (Order Granting Petition, January 25, 2013). On January 31, 2013, the
                   parties met to discuss a new trial date. The State conceded that these 3
                   days count toward the TAD timeline. At this point, 151 days of the 180-
                   day timeline had passed.
                   January 31, 2013 - May 20, 2013: disputed 109 days
                               At the January 31, 2013, hearing the following exchange
                   occurred:
                                Mr. Coyer [defense attorney]        [T]he Defense is
                                still requesting the speediest trial we can get for
                                Mr. Price. I would ask for an expedited resolution
                                of that issue and a very quick trial setting, Your
                                Honor.




                   ...continued
                   that the defendant's continuance should not be attributable to him
                   because the State's late filing left him with no choice). However, in the
                   district court, Price explicitly agreed to toll this period and stated that he
                   would not argue about this period going forward in exchange for the
                   granting of the continuance. Now, Price argues on appeal that the State's
                   "bad faith gamesmanship" in not timely providing him with Edelman's
                   proffer after the continuance was granted invalidates this waiver. Yet,
                   Price's waiver of his TAD argument was not conditioned on the State
                   providing Edelman's proffer. Thus, we will not address Price's contention
                   at oral argument.

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                           The Court: I was hoping that the 25th of February
                           was going to be our trial date in here, but you
                           can't do it on the 25th.
                           Mr. Stanton [prosecution]: That's correct, and
                           neither can Miss Clowers.
                           The Court: Okay. So --
                           Mr. Coyer: We can do February 11th, if the Court
                           has that open.
                           The Court: The State's already indicated there is
                           no way they canS get their witnesses together by
                           February 11th.
                            Mr. Stanton: I got a trial in a child murder, case.
                            The Court: Okay.
                           Mr. Stanton: It's been set for a year.
                The district court then chose May 20, 2013, as the trial date based upon
                Mr. Stanton's schedule and ignored Price's objection. We note that due to
                the 151 days that count toward the timeline and this 109-day period that
                is in dispute, whether the January 31, 2013 to May 20, 2013, continuance
                was a necessary and reasonable continuance for good cause that tolled the
                IAD timeline is outcome determinative.
                            The State argues that this was such a continuance since Mr.
                Stanton's child murder trial date could not be moved, despite the fact that
                he was not the prosecutor when the case went to trial in May. However, it
                is unclear from the record when Mr. Stanton's child murder trial actually
                started and whether it interfered with his ability to try the case on both
                dates. The above-quoted portion of the record makes it seem as though it
                conflicted with both trial dates, but nothing in the record shows that Mr.
                Stanton's child murder trial was scheduled to last two weeks. The State's
                brief confuses matters as it argued that the child murder trial interfered


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                       with the February 25 trial date and failed to discuss the February 11 trial
                       date. See infra note 7.
                                     At oral argument, the State averred that Ms. Clowers also had
                       a scheduling conflict that prevented the February dates. Yet, the State's
                       brief does not make or suggest this argument. 7 Although the record
                       supports that Ms. Clowers had a trial date in February, the State provided
                       this court with no information about the asserted conflicting trial
                       commitment. 8 See Brown v. Wolff,     706 F.2d 902, 906-07 (9th Cir. 1983)
                       (placing burden on the State to show good cause for delaying trial beyond
                       180-day limit); State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 59 (Mo.
                       Ct. App. 1980) (recognizing that if the prisoner complies with the
                       procedural requirements of the IAD, "the burden shifts to the State to
                       produce evidence on the record that there was good cause to delay trial
                       beyond 180 days"). Again, we do not know when this trial was scheduled
                       to start, what it involved, and whether it interfered with both proposed


                             7 TheState's brief says, "[u]nfortunately, one of the prosecutors was
                       unavailable on February 25, 2013, due to a previously set child murder
                       trial." (Emphasis added.) Later on, the State argued, "[o]n January 31,
                       2013, the State indicated that one of the prosecutors was trying a child
                       murder case which had been set for a year, and as such was unavailable
                       for the proposed February trial date." (Emphasis added.) There is no
                       mention of the February 11 trial date or of a second prosecutor who had a
                       scheduling conflict.

                             8 Besides  the quoted• portion above, the other evidence of Ms.
                       Clowers' trial schedule comes from the hearing on Price's second motion to
                       dismiss for violation of the IAD's speedy trial provision where she stated:
                       "For the February date; yes, there are times because Mr. Stanton and I
                       have so many cases, and our cases aren't the type that we can handle [sic]
                       them off. We have to stick with our trials. The February dates didn't
                       work."

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                 trial dates or only one. 9 Of note, it is also not clear that both Mr. Stanton
                 and Ms. Clowers were needed to try the case, as Mr. Stanton was not the
                 prosecutor when the case went to trial.
                             The district court denied Price's second motion to dismiss for
                 violation of the IAD's speedy trial provision by simply stating in its order,
                 "the Court having heard the arguments of counsel and finds that all
                 continuances in this case have been reasonable and necessary." At the
                 hearing on Price's motion, the district court indicated that both
                 prosecutors' trial schedule conflicts made the January 31, 2013,
                 continuance reasonable and necessary. Yet, it did not determine whether
                 the continuance was for good cause. Further, the district court did not
                 make any factual findings regarding the trial dates and as our discussion
                 above indicates, the facts surrounding these dates are crucial to any
                 decision on whether the continuance from January 31, 2013, to May 20,
                 2013, was a necessary and reasonable continuance for good cause.
                             This court is not a fact-finding body and, thus, it would be
                 inappropriate for us to engage in fact-finding now.       See Ryan's Express
                 Transp. Servs. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d
                 166, 172 (2012) ("An appellate court is not particularly well-suited to make
                 factual determinations in the first instance."); Roberson v. Commonwealth,



                       9At  oral argument before this court, the State contended, for the first
                 time, that it could not be ready for the February 11, 2013, trial date
                 because it was eleven days after the January 31, 2013, hearing to set
                 Price's trial date, and it was impossible for the State to get its witnesses
                 together. This argument should be addressed to the district court in the
                 first instance.




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                  913 S.W.2d 310, 314-15 (Ky. 1994) (remanding where the trial court failed
                  to address whether the length of the continuance was for good cause and
                  was necessary or reasonable),       abrogation recognized by Parks v.
                  Commonwealth, 89 S.W.3d 395 (Ky. 2002). Therefore, we remand to the
                  district court to determine whether Price's TAD right to a speedy trial was
                  violated. Accordingly, we
                              ORDER this matter REMANDED to the district court for
                  proceedings consistent with this order.



                                                                                    J.



                                                                                    J.
                                                     Gibbons


                                                                                    J.



                  cc: Hon. James Crockett, District Judge
                       Coyer Law Office
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk




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