Electronically Filed Jan 29 2014 10:22 A.M. Tracie K. Lindeman Clerk of Supreme Court

IN THE SUPREME COURT OF THE STATE OF NEVADA
EDWARD KENNETH COLUCCI,

Appellant,
v.
Electronically Filed
CASE NO: 64220
Jan 29 2014 10:22 a.m.
Tracie K. Lindeman
Clerk of Supreme Court
THE STATE OF NEVADA,

Respondent.
FAST TRACK RESPONSE
1.
Name of party filing this fast track response: The State of Nevada
2.
Name, law firm, address, and telephone number of attorney submitting
this fast track response:
3.
Steven S. Owens
Clark County District Attorneys Office
200 Lewis Avenue
Las Vegas, Nevada 89155-2212
(702) 671-2750
Name, law firm, address, and telephone number of appellate counsel if
different from trial counsel:

Same as (2) above.
4.
Proceedings raising same issues. List the case name and docket number
of all appeals or original proceedings presently pending before this court, of

which you are aware, which raise the same issues raised in this appeal:
None
///
I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2014 FASTRACKS\COLUCCI, EDWARD KENNETH, 64220, RESP'S FTR.DOC
Docket 64220 Document 2014-03004
5.
Procedural history.
On January 14, 2011, Edward Kenneth Colucci (Colucci) was charged by
way of Information with Robbery (Felony NRS 200.380); Child Abuse &
Neglect (Felony NRS 200.508); Child Abuse & Neglect with Substantial Mental
Harm (Felony NRS 200.508); First Degree Kidnapping (Felony NRS 200.310,
200.320); Second Degree Kidnapping (Felony NRS 200.310, 200.330); Battery
with use of a Deadly Weapon (Felony NRS 200.481); Battery with Substantial
Bodily Harm (Felony NRS 200.481); Battery Constituting Domestic Violence
Strangulation (Felony NRS 200.481, 200.485, 33.018); and Child Abuse &
Neglect with Substantial Bodily Harm (Felony NRS 200.508). Appellant
Appendix (AA) 10-15. On Amended Information was filed on April 19, 2011,
charging Colucci with the same crimes. AA 174-79.
On October 9, 2012, Colucci entered a plea of guilty pursuant to North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970) to Count 2 Child Abuse and
Neglect, Count 3 Child Abuse and Neglect with Substantial Mental Harm, and
Counts 12-13 Child Abuse & Neglect with Substantial Bodily Harm, pursuant to
a Guilty Plea Agreement (GPA). 2 AA 423-29.
In the GPA, both parties
stipulated to a prison term of three (3) to twenty (20) years, with all counts running
concurrent. 2 AA 423.
2
On January 6, 2013, Colucci filed a Motion to Withdraw Guilty Plea. 3 AA

685-90. On February 11, 2013, the State filed an Opposition. 2 AA 444-56. On
March 27, 2013, Colucci filed a Reply. 3 AA 481-88. On May 2, 2013, the district
court held an evidentiary hearing on the Motion. 3 AA 629-684. After hearing
testimony from trial counsel and Colucci, and arguments from both parties, the
district court denied the Motion. 3 AA 677-78.
On
June
17,
2013,
Colucci
filed
Petition
for
Writ
of
Prohibition/Mandamus. 3 AA 691-700. On June 17, 2013, this Court filed an

Order denying the Petition because Colucci had an available remedy in the form of
a direct appeal. 3 AA 701-02.
On September 30, 2013, Colucci was sentenced to the Nevada Department
of Corrections as follows: Count 2 twenty-eight (28) to seventy-two (72) months;
Count 3 thirty-six (36) to two hundred forty (240) months; Count 12 thirty-six
(36) to two hundred forty (240) months, Count 12 to run concurrent with Count 3;
and Count 13 thirty-six (36) to two hundred forty (240) months, Count 13 to run
concurrent with Count 12, with one thousand forty-two (1042) days credit for time
served and the remaining counts dismissed. 3 AA 495-96. The Judgment of
Conviction was filed on October 4, 2013. 3 AA 495-96.
3
On October 11, 2013, Colucci filed a Notice of Appeal. 3 AA 497-98. On

January 8, 2014, Colucci filed the instant Fast Track Statement. The States
response follows.
6.
Statement of Facts.
Relevant Preliminary Hearing Facts
Colucci met Hivete Jakeline Junco (Junco) online and Junco moved to Las
Vegas from Utah for him. AA 32. Junco had two sons, Joshua and Josiah. AA 32.
Colucci, Junco, Joshua, and Josiah all eventually moved into a house together at
Lake Las Vegas. AA 37. After they all moved into that house, Colucci began to
beat the two boys and Junco. AA 37. Colucci would poke Joshuas eyes and hit
the side of Joshuas head with his fists. AA 37. Colucci would also punch Joshua
in the stomach and trip him with his feet. AA 37. Colucci would force Joshua to
wear pink sandals and diapers in public as a form of humiliation. AA 37. He
would also force Joshua to eat Roman noodle soups with a lot of salt on it, along
with asparagus or onion and garlic cloves, and raw vegetables. AA 37. If he
finished the food, then he would be allowed to get real food, but if Joshua was not
able to finish the food, Colucci would make it harder. AA 37-38. As forms of
punishment, Colucci would force Joshua to stand all day long or sleep in the
bathroom. AA 37-38. There was one specific time when Colucci hit Joshua for
being rude and gave him two black eyes. AA 19-20.
4
Josiah began being punished for not eating and/or not eating fast enough.
AA 38. As punishment, Josiah was given Raman noodle soups with salt and garlic
gloves. AA 38. If Josiah cried, Colucci would make him eat onions and garlic.
AA 38. Colucci would hit Josiah in the back with his fist, slap the side of Josiahs
head by his ears, poke his eyes, pull his ears, stomp on his feet, and knock him off
of the stool that he was sitting on to eat. AA 38. Also as a form of punishment,
Colucci would put Josiah in a cold shower and force him to stand there for two or
three minutes or Colucci would pour ice over Josiahs head. AA 38. Another form
of punishment involved forcing Josiah to stand in the bathroom with his arms up
for the entire day. AA 38. He would also use his fists on Josiah often and left
bruises. AA 38.
All during this time, Colucci was physical towards Junco by punching her on
the side of the head, hitting her stomach, pulling her hair, calling her names,
stomping on her feet, and kicking her. AA 38.
Specifically, on November 16, 2010, Colucci attacked Junco in the kitchen
because she packed Joshua a lunch of peanut better and jelly sandwich, apple
sauce, and a granola bar. AA 39. He threw some groceries and told Junco to clean
it up. AA 39. Colucci then pushed her against a desk, hit her head with his fist,
and told Junco to call her dad to pick her up because he was kicking her out. AA
39. Junco called her dad, told him that Colucci was being abusive, and her dad
5
told her that he was going to come pick her up the next day. AA 39. While Junco
was packing her stuff, Colucci got angry, grabbed Juncos purse, threw the
contents in the toilet, flushed it, cut up Juncos ID and the childrens birth
certificates, took all the clothes from the closet and threw them on the floor, and
then pushed and punched Junco. AA 40.
While punching Junco, Colucci grabbed Joshua and hit him. AA 40. While
Junco was trying to shield Joshua, Colucci bit her nose and the side of her cheek,
punched her, poked her eye, and threw her to the floor where he began to strangle
her. AA 40. Colucci grabbed a knife, walked towards Junco, and pulled her hair.
AA 40. Junco grabbed the knife and told Colucci she would put it down if he left
her alone. AA 40. After she put the knife down, Colucci retrieved it and flashed it
in her face. AA 40. Junco grabbed the knife again because she thought Colucci
was going to stab her. AA 41.
After the incident ended, Colucci told Junco that she better tell her dad not to
come because he had a legal right to shoot him if he showed up at the door. AA
41. Junco told her dad not to come because she was afraid Colucci would follow
through with his threat. AA 41.
The next weekend, Josiah was not eating fast enough for Coluccis liking, so
Colucci hit him on the back, punched him, pushed him from his stool, and poked
him in the eye with his fingers. AA 41. Colucci punched the sides of Josiahs
6
head, slapping his head and pulling his hair. AA 41. He sprayed Windex in
Josiahs eyes and then grabbed hydrogen peroxide and sprayed that in his eyes as
well. AA 41. Junco grabbed Josiah and tried to pull him away, but Colucci
responded by throwing a three pound dumbbell at them. AA 41. Colucci continued
to hit both Junco and Josiah. AA 42. Colucci told both of them to go to the
bedroom where they went to sleep that night. AA 42. While Junco was getting
ready for work the next day, Colucci came out of the bedroom with Josiah hitting
him. AA 42. Josiah was not responsive and looked like he was not breathing,
which caused Junco to become desperate and call 911 in a panic. AA 42. Police
and fire arrived and took Josiah to the hospital. AA 43.
Josiah had two black eyes, his skin was yellow and he was bruised from
head to toe. AA 28. Josiah was very skinny, his rib cage was visible, and his belly
popped out like a very malnourished child. AA 28-29. After Josiah was released
from the hospital, he went home with his dad, Jesse Ortiz. AA 29. Josiah began
developing major headaches, was lethargic, and would throw up anything he ate.
AA 29. Josiah, who was four years old at the time, had to take Tylenol with
codeine three times a day for the pain. AA 29.
Evidentiary Hearing
The district court held an evidentiary hearing on the voluntariness of the
guilty plea. Trial counsel John Momot (Momot) testified that it is his practice to
7
reduce any plea offers to writing and he calls this writing an acknowledge
regarding a plea offer. 3 AA 635. He then takes the writing to the defendant and
the defendant either accepts or rejects the offer and signs the writing. 3 AA 635. In
this particular case, Momot testified that there were four written acknowledges
regarding a plea offer that covered five different plea offers. 3 AA 636. The
writing includes the name of the case, the case number, the charges, details about
the charges, a summary of the potential penalty, and the States offer. 3 AA 638.
A portion of the document has the defendant sign off on whether all his questions
were answered, whether he had enough time to deliberate, and whether he accepted
or rejected the plea offer. 3 AA 639. For this case, Momot testified that he went
over all of the counts and all of the evidence that pertained to each count, then
advised whether the offered plea deal would be a good negotiation. 3 AA 639.
Colucci signed a writing that he rejected the first four offers. 3 AA 639-42. Each
subsequent written document explained what the new offer was and how it differed
from the previous offer. 3 AA 642. The written acknowledgement regarding the
fifth plea offer delineated the four charges that Colucci would be pleading guilty to
and Momot made sure to explain to him that it was four separate felonies. 3 AA
643-44. In fact, all five offers included the same four counts. 3 AA 638. Momot
believed that Colucci understood that he was pleading to four felonies and that,
although the offense was probationable, that he would be stipulating to prison time.
8
3 AA 643. Colucci signed the writing that he accepted the plea offer. 3 AA 644.
Momot testified that if for a moment he thought that Colucci did not understand,
that he would not have allowed the plea process to move forward. 3 AA 645.
Throughout the entire process, Momot visited Colucci fifty-seven times in jail. 3
AA 646.
On cross-examination, Momot testified that Colucci had told him that he
wanted a plea deal that consisted of a three (3) to fifteen (15) prison sentence, with
all counts running concurrent, but that the best they could do was a three (3) to
twenty (20) prison sentence, with all counts running concurrent. 3 AA 650. Momot
said all five offers from the State included dismissing the counts regarding abusing
Junco but the State was adamant about having Colucci plead guilty to the counts
that involved the two children. 3 AA 651. Momot never believed, even from the
start, that the judge would sentence Colucci to probation and he made that clear to
Colluci at the very beginning as they planned on how to deal with that. 3 AA 652.
The court even questioned Momot directly on whether he explained to
Colucci what it meant to plead guilty pursuant to the Alford decision. 3 AA 65759. It was important to Colucci to plead guilty pursuant to Alford because Colucci
was facing life imprisonment and Colucci had maintained his innocence. 3 AA
658. Momot explained that Colucci maintained his innocence to a degree because
9
there were two adults in the apartment and there were questions as to whether the
State could prove the substantial bodily harm enhancements. 3 AA 658-59.
Colucci testified at the evidentiary hearing that Momot had told him that he
was pleading guilty for failure to report Junco and for allowing Junco to beat her
children. 3 AA 661. He testified that Momot never went over the GPA with him
and that Momot pressured him to sign the GPA because Judge Cadish was getting
upset and shes going to get mad at me if I dont hurry up. 3 AA 663. Colucci
testified that Momot did not properly explain what pleading guilty pursuant to
Alford meant, and that he thought he was pleading guilty to one felony even
though he understood that all four counts were going to run concurrent. 3 AA 664.
On cross-examination, Colucci said that Momot was lying when he testified that he
went over all four of the written acknowledgments and had Colucci sign them. 3
AA 667. But when pressed by the court, Colucci admitted to signing the forms but
said that he did not look at them. 3 AA 667-68. The court asked Colucci about
answering that he understood the charges when the court asked him if he
understood during the plea canvass. 3 AA 670. He said he was merely following
Momots orders to say yes to everything. 3 AA 670. Colucci understood that more
than one count was going to run concurrent but he thought it meant that he was
only going to have one felony on his record. 3 AA 670.
10
After hearing argument from counsel, the district court determined that the
plea was knowingly and voluntarily entered. 3 AA 677. The court held that the
plea was valid when considering the totality of the circumstances that included the
GPA, plea canvass, the courts recollection of the case, along with the testimony
from Momot that emphasized the care taken to ensure that Colucci understood the
charges and what he was pleading guilty to. 3 AA 677-78. Ultimately, the court
concluded, Mr. Colucci is a fairly intelligent individual, and given everything
before me, I do believe that the plea was freely and voluntarily entered and I dont
find a basis to withdraw the plea. 3 AA 678.
7.
Issue(s) on appeal.
I.
8.
Whether the District Court abused its discretion in denying Coluccis

pre-sentence Motion to Withdraw Guilty Plea.
Legal Argument, including authorities:

A.
Coluccis Argument On Appeal Was Not Properly Preserved
In Coluccis Motion to Withdraw Guilty Plea before the district court, his
sole contention for withdrawing his plea involved his assertions that trial counsel
misled him on what charges he was pleading guilty to and what sentence he would
receive. 3 AA 685-690. For the first time on appeal, Coluccis sole contention is
that the plea canvass was insufficient. See Appellants Fast Track Statement pp.
13-14.
This issue was never presented to the district court to consider.
Furthermore, the instant appeal is devoid of any theory that trial counsel misled
Colucci. A defendant cannot change his theory underlying an assignment of error
11
on appeal. Ford v. Warden, Nevada Womens Corr. Ctr., 111 Nev. 872, 884, 901
P.2d 123, 130 (1995) (citing McCall v. State, 97 Nev. 514, 516, 634 P.2d 1210,
1212 (1981)). Thus, Coluccis appellate theory underlying the district courts
abuse of discretion is improperly before this Court. The district court cannot abuse
its discretion in denying a motion based on an argument that was not before it.
B.
The District Court Did Not Abuse Its Discretion In Denying

Coluccis Motion To Withdraw Guilty Plea
Colucci claims that the district court abused its discretion by denying his
motion to withdraw guilty plea because the plea canvass was inadequate. Even if
this Court decides to entertain this claim on the merits, Coluccis claim is without
merit.
The law in Nevada clearly establishes that a plea of guilty is presumptively
valid and the burden is on a defendant to show that the plea was not voluntarily
entered. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (citing
Wingfield v. State, 91 Nev. 336, 337, 535 P.2d 1295, 1295 (1975)). It is within the
district courts discretion to grant a defendants presentence motion to withdraw a
guilty plea for any substantial reason that seems fair and just. State v. Second
Judicial Dist. Court, 85 Nev. 381, 385, 455 P.2d 923, 926 (1969). The district
court must examine the totality of the circumstances to determine whether a
defendant entered his plea voluntarily, knowingly, and intelligently. Molina v.
State, 120 Nev. 185, 191, 87 P.3d 533, 537-38 (2004). When reviewing a district
12
courts denial of a motion to withdraw a guilty plea, this court presumes that the
district court properly assessed the pleas validity, and we will not reverse the
lower courts determination absent abuse of discretion. Id.
While trial courts should in all circumstances conduct sufficient and
thorough plea canvasses, this Court cannot be constrained to look only to the
technical sufficiency of a plea canvass to determine whether a plea is invalid. Little
v. Warden, 117 Nev. 845, 851, 34 P.3d 540, 544 (2001). [C]ircumstances
surrounding the guilty plea are reviewed to ensure that the defendant knew the
direct consequences arising therefrom. Id.
In this appeal, Colucci argues that he should be allowed to withdraw his
guilty plea because the court at the very least needed to go over each and every
crime he was pleading guilty to and each and every constitutional right he was
waiving. See Fast Track Statement p. 13. When viewed in the totality of the
circumstances, this argument fails to show that Colucci entered his guilty plea
involuntarily, unknowingly, and unintelligently. Colucci contends that he did not
understand what charges he was pleading guilty to. At the evidentiary hearing,
Colucci testified that he thought he was pleading guilty to charges for failure to
report Junco to Child Protective Services and he thought he was pleading guilty to
four felonies but that they would appear on his record as one felony. 3 AA 661,
664.
13
Initially, it must be noted that Colucci was present for the preliminary
hearing in which there was no testimony that Colucci was being accused of failing
to report Junco for the way she treated the children. There was no evidence
presented that Junco was the one abusing her children.
The only evidence
presented at the preliminary hearing was that Colucci violently, repeatedly beat
and abused Junco, Joshua, and Josiah. AA 32-49.
The Amended Information, which contained the charges that Colucci pled
guilty to, detailed the States theory as to Counts 2, 3, 12, and 13 (the counts to
which Colucci pled guilty). As to Count 2, the Amended Information stated that
Colucci committed the crime of Child Abuse & Neglect by depriving Joshua of
food, then forcing him to eat raw vegetables only until he became sick, confining
him to his room for many days in a row, forcing him to sleep on a towel on the
bathroom floor, depriving him of sleep, forcing him to sit in for many hours at a
time while undressed, cold, and uncomfortable; verbally abusing him, forcing him
to wear inappropriate attire to humiliate him, physically beating him, and keeping
him out of school. AA 175. As to Count 3, the Amended Information stated that
Colucci committed the crime Child Abuse & Neglect with Substantial Mental
Harm by forcing Josiah to wear humiliating clothing, depriving him of food,
forcing him to eat distasteful food, physically torturing him by making him stand
in unnatural positions for prolonged periods, forcing him to take prolonged cold
14
showers, and beating him resulting in substantial mental harm. AA 175-76. As to

Count 12, the Amended Information stated that Colucci committed the crime of
Child Abuse & Neglect with Substantial Bodily Harm by hitting Josiah on the head
causing him to hit the plate, punching his body, poking him in the eye, and
spraying glass cleaner into his face, punching sides of his head, resulting in
substantial bodily harm. AA 178. As to Count 13, the Amended Information stated
that Colucci committed the crime of Child Abuse & Neglect with Substantial
Bodily Harm by throwing a dumbbell at Josiah, striking him with it, and/or
punching and kicking him about the body and lifting him off the floor by the hair
and throwing him down again, resulting in substantial bodily harm. AA 178. The
Amended Information is devoid of any accusation that Colucci failed to report
Junco.
Additionally, Colucci signed and attested to a GPA that stated that he was
pleading guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) to Counts
2, 3, 12 and 13. 2 AA 423. The GPA stated that the parties stipulated to a sentence
of three (3) to twenty (20) years, with all four counts running concurrent. 2 AA
423. The GPA also explained what pleading guilty pursuant to Alford meant and
Colucci acknowledged that pleading guilty was in his best interest. 2 AA 424. The
GPA explained the sentence range for each count and Colucci acknowledged that
he was not promised a particular sentence. 2 AA 424-25. Additionally, the GPA
15
outlined each and every constitutional right that Colucci was waiving by pleading
guilty. 2 AA 427. Finally, the GPA acknowledged that Colucci understood the
charges, that he discussed with his attorney the possible defenses and strategies,
and that his attorney answered all his questions regarding the plea deal. 2 AA 42728. Moreover, trial counsel Momot signed a Certificate of Counsel that he fully
explained to the defendant the allegations contained in the charges to which Alford
pleas were being entered along with the penalties for each charge, and that the
defendant was competent, understood the charges, and voluntarily entered the
Alford pleas. 2 AA 429.
On October 9, 2012, the district court canvassed Colucci as to whether he
voluntarily, knowingly, and intelligently entered his guilty plea. 3 AA 473-480.
The court asked Colucci if he had an opportunity to review the Amended
Information, specifically counts 2, 3, 12, and 13, to which Colucci answered,
Yes. 3 AA 475. Colucci said that he understood the charges. 3 AA 475. The
court specifically asked, Do you need me to read them out loud to you again here
in open court? 3 AA 475. Colucci answered, No. 3 AA 475. Upon further
questioning, Colucci answered that no one was coercing him to take the plea, that
no one had made any promises to him except for what was contained in the GPA,
that he signed the agreement, went over it with his attorney before signing it, that
he understood the possible sentences for each count, and that no one could promise
16
him leniency or probation as the sentencing was purely up to the court. 3 AA 47677. The court accepted the transcript from the preliminary hearing as the factual
basis as she had become familiar with what was in the transcripts due to prior
proceedings in this case and Colucci answered that he understood that the court
was doing so. 3 AA 478. Finally, Colucci answered that pleading guity was in his
best interest to avoid a possible harsher penalty if convicted of all the original
charges at trial. 2 AA 478. Before finding that the guilty plea was freely and
voluntarily made, the court asked Colucci if he had any questions for the court or
his attorney, to which he answered, No. 3 AA 478.
Before denying the Motion to Withdraw Guilty Plea, the district court held
an evidentiary hearing wherein testimony from Momot and Colucci was heard.
Momot testified, In this particular case, the State had continuously discussed plea
offers in counts 2, 3, 12, and 13, and they primarily involved the two children in
this particular case. 3 AA 638. Momot explained how he would reduce to writing
every offer that the State made, then he would take that writing to Colucci where
he would discuss in detail the offer, and Colucci would either sign the writing that
he rejected or accepted the offer. 3 AA 635. There were five offers in this case that
all involved the same four counts. 3 AA 638. Colucci rejected the first four offers
and accepted the fifth offer. 3 AA 640-43. The fifth offer was reduced in writing,
which delineated the four charges that Colucci pled guilty to, and Colucci signed it.
17
3 AA 643. Momot testified that it seemed like Colucci understood. 3 AA 644. On

top of that, Momot visited Colucci fifty-seven times while Colucci was in jail. 3
AA 646. Furthermore, Colucci had expressed to Momot that he wanted a plea deal
with a stipulated sentence of three (3) to fifteen (15) years in prison with all counts
running concurrent. 3 AA 650. The best Momot could do was three (3) to twenty
(20) years in prison with all counts running concurrent. 3 AA 650. The district
court found that based on everything before it, including the testimony from
Momot that emphasized the care that he took to ensure that Colucci understood
what was going on, that the plea was freely and voluntarily entered. 3 AA 677-78.
Based on the totality of the circumstances as detailed supra, Colucci
understood what he was pleading guilty to, what rights he was giving up, and
therefore, his plea was entered into voluntarily, knowingly, and intelligently.
Colucci argues that this Court cannot focus on the Guilty Plea Agreement alone
and determine if his plea was voluntarily, knowingly, and intelligently entered.
Instead, he argues that this Court should focus solely on the plea canvass.
However, this Court cannot be constrained to look only to the technical sufficiency
of a plea canvass to determine whether a plea is invalid. Little, 117 Nev. at 851, 34
P.3d at 544. The totality of the circumstances shows that Coluccis plea was valid.
To the extent that Colucci argues that he has continually maintained his
innocence and that this should somehow weigh into whether his motion should
18
have been granted, this argument is irrelevant. Colucci pled guilty pursuant to the
Alford decision which does not require a defendant to admit guilty. Not only did
the GPA explain this to Colucci, but Momot testified at the evidentiary hearing that
he thoroughly explained the concept of pleading guilty pursuant to the Alford
decision with Colucci. 3 AA 657-59. Therefore, Colucci understood that he was
not admitting guilt.
9.
Preservation of the Issue.

This issue was not properly preserved because Colucci has changed his
theory underlying the assignment of error on appeal. Ford, 111 Nev. at 884, 901
P.2d at 130.
19
VERIFICATION
1. I hereby certify that this fast track response complies with the formatting
requirements of NRAP 32(a)(4), the typeface requirements of NRAP
32(a)(5) and the type style requirements of NRAP 32(a)(6) because this fast
track response has been prepared in a proportionally spaced typeface using
Microsoft Word 2003 in 14 point and Times New Roman style.
2. I further certify that this fast track response complies with the page or typevolume limitations of NRAP 3C(h)(2) because it is proportionately spaced,
has a typeface of 14 points or more and contains 4,480 words.
3. Finally, I recognize that pursuant to NRAP 3C I am responsible for filing a
timely fast track response and the Supreme Court of Nevada may sanction
an attorney for failing to file a timely fast track response, or failing to
cooperate fully with appellate counsel during the course of an appeal. I
therefore certify that the information provided in this fast track response is
true and complete to the best of my knowledge, information and belief.
Dated this 28th day of January, 2014.
Respectfully submitted,
STEVEN B. WOLFSON
Clark County District Attorney
BY /s/ Steven S. Owens
STEVEN S. OWENS
Chief Deputy District Attorney
Nevada Bar #004352
Office of the Clark County District Attorney
Regional Justice Center
200 Lewis Avenue
P O Box 552212
Las Vegas, NV 89155-2212
(702) 671-2750
20
CERTIFICATE OF SERVICE
I hereby certify and affirm that this document was filed electronically with
the Nevada Supreme Court on January 28, 2014.
Electronic Service of the
foregoing document shall be made in accordance with the Master Service List as
follows:
CATHERINE CORTEZ MASTO
Nevada Attorney General
KAMBIZ SHAYGAN-FATEMI
Deputy Public Defender
STEVEN S. OWENS
Chief Deputy District Attorney
BY /s/ j. garcia
Employee,
Clark County District Attorneys Office
SSO/Matthew Whittaker/jg
21

Electronically Filed Jan 29 2014 10:22 A.M. Tracie K. Lindeman Clerk of Supreme Court

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Electronically Filed Jan 29 2014 10:22 A.M. Tracie K. Lindeman Clerk of Supreme Court

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IN THE SUPREME COURT OF THE STATE OF NEVADA

EDWARD KENNETH COLUCCI,

THE STATE OF NEVADA,

Name, law firm, address, and telephone number of attorney submitting

this fast track response:

different from trial counsel:

of all appeals or original proceedings presently pending before this court, of

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2014 FASTRACKS\COLUCCI, EDWARD KENNETH, 64220, RESP'S FTR.DOC

Docket 64220 Document 2014-03004

In the GPA, both parties

On January 6, 2013, Colucci filed a Motion to Withdraw Guilty Plea. 3 AA

Prohibition/Mandamus. 3 AA 691-700. On June 17, 2013, this Court filed an

On October 11, 2013, Colucci filed a Notice of Appeal. 3 AA 497-98. On

Whether the District Court abused its discretion in denying Coluccis

Legal Argument, including authorities:

This issue was never presented to the district court to consider.

The District Court Did Not Abuse Its Discretion In Denying

The only evidence

showers, and beating him resulting in substantial mental harm. AA 175-76. As to

3 AA 643. Momot testified that it seemed like Colucci understood. 3 AA 644. On

Preservation of the Issue.

Electronic Service of the

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