State of Washington v. Mary Annvalee Faucett

• Court: Court of Appeals of Washington
• Decided: February 1, 2024
• Docket: 38690-2
• Status: Unpublished

Opinion

FILED FEBRUARY 1, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 38690-2-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) MARY ANNVALEE FAUCETT, ) ) Appellant. )

FEARING, C.J. — As a matter of precaution to preserve her right to appeal, Mary

Faucett appealed the superior court’s failure to address a pending motion for

reconsideration of an order denying her motion to vacate a conviction and withdraw a

guilty plea. Because the superior court judge, who entered the order has retired, we

remand for another judge to entertain the motion for reconsideration.

FACTS

We previously issued a decision in this prosecution memorialized at State v.

Faucett, No. 35627-2-III (Wash. Ct. App. Mar. 21, 2019) (unpublished),

https://www.courts.wa.gov/opinions/pdf/356272_unp.pdf. From a plea of guilty of

manslaughter, Mary Faucett appealed the superior court’s earlier denial to dismiss No. 38690-2-III State v. Faucett

homicide charges, which motion she based on an agreement with the State for her to

disclose information. We rejected the appeal because the guilty plea waived the right to

challenge the motion’s denial.

We abbreviate some of the facts narrated in our earlier decision. Mary Faucett

participated in the December 3, 2014 homicide of Lorenzo Fernandez, shot by her

husband’s cousin. The cousin believed a member of a gang, to which Fernandez

belonged, shot one of the cousin’s friends.

On the night of Lorenzo Fernandez’s death, Mary Faucett lured Fernandez, under

the pretext of sexual relations, to an apartment where the homicide occurred. After the

shooting, she housed her husband’s cousin while police searched for him. She traveled

with others to dispose of evidence.

Mary Faucett denied participation in the shooting. At the outset of the police

investigation, Faucett agreed to provide information to law enforcement that implicated

others. In exchange for her truthful and complete cooperation, the State offered a plea of

rendering criminal assistance. As the investigation progressed, the State discovered

evidence that Faucett’s participation in the crime was greater than she claimed. The State

withdrew the offer for leniency.

With the progression of the investigation, the State amended the information to

reflect mounting evidence of Mary Faucett’s role in the crime. During that time, a public

defender represented her. After the State determined the full nature and extent of

2 No. 38690-2-III State v. Faucett

Faucett’s involvement in the homicide, the State filed a fourth amended information that

charged first degree murder.

With the last amended information, Mary Faucett, under the mistaken impression

that she could gain better representation from one other than a public defender, sought

private counsel to challenge the first degree murder charge. She paid $20,000 to hire

private counsel John Crowley. Under the retainer agreement, Crowley would retain the

$20,000 no matter the amount of work he performed.

John Crowley appeared as counsel on behalf of Mary Faucett on April 20, 2017.

Faucett did not then know that on the date he filed his appearance to represent her,

Crowley had been the subject of an ongoing investigation by the Washington State Bar

Association Office of Attorney Discipline (OAD). Just three days before his appearance

on April 20, the investigation had progressed to the point that OAD filed and served

Crowley with a Second Amended Formal Complaint and Notice to Answer on April 17,

2017.

At the time of John Crowley’s appearance, Faucett’s trial was scheduled to begin

June 5, 2017, but the court shortly thereafter postponed the first day of trial until August

28, 2017. According to Faucett, she promptly disclosed facts to Crowley that would have

supported a motion to suppress evidence, but Crowley failed to file any motion.

OAD’s investigation discovered numerous ethical violations by John Crowley that

contained a common thread. Crowley accepted large amounts of cash for representation

and failed to aggressively represent the client or perform tasks he promised to perform.

3 No. 38690-2-III State v. Faucett

OAD accumulated a catalog of untrue statements Crowley made to clients, opposing

counsel, law enforcement, and courts.

On July 18, 2017, John Crowley entered an agreement with OAD, under which he

would resign effective September 18, 2017. Then on August 17, 2017, on the

recommendation of attorney John Crowley, Mary Faucett pled guilty to a reduced charge

of first degree manslaughter. The trial court sentenced Faucett on September 14, 2017.

The court imposed an aggravated exceptional sentence of 130 months, twelve months

higher than the high-end standard range sentence. She now maintains that Crowley

“coerced” her to plead guilty to first degree manslaughter. Faucett further claims that

Crowley told her she could argue for a lower-range sentence of 84 months.

Mary Faucett asserts that she learned, after her plea, that John Crowley had

brokered a deal with the State for the exceptional high sentence. During the plea entry

and the later sentencing hearing, Crowley failed to disclose to Mary Faucett, the State, or

the Franklin County Superior Court the pending ethical complaints or his agreement to

resign his lawyer license on September 18.

PROCEDURE

In February 2020, nine months after issuance of the mandate by this appellate

court, Mary Faucett, through a third attorney, filed a motion, pursuant to CrR 7.5 and 7.8,

to vacate the criminal judgment and sentence. As part of the motion, she also sought

permission to withdraw her guilty plea to manslaughter because the plea was the product

of ineffective assistance of counsel. According to Faucett, Crowley failed to advise her

4 No. 38690-2-III State v. Faucett

of his pending resignation as a lawyer and hurriedly resolved her prosecution in order to

shelter the $20,000 retainer payment. In doing so, he failed to file a promised motion to

suppress evidence. In furtherance of his design, Crowley misadvised her and coerced her

into an unfavorable plea agreement. Faucett based the motion on information she gained

about John Crowley after her appeal.

The superior court regarded Mary Faucett’s motion to vacate her judgment as

untimely and transferred the motion to this court as a personal restraint petition. We

adjudged the motion timely and remanded the motion to the superior court.

On remand, Faucett enlisted a third attorney to vacate the judgment. On August

27, 2021, Franklin County Superior Court Judge Cameron Mitchell, who took the 2017

guilty plea and sentenced Mary Faucett, conducted an evidentiary hearing on the motion

to set aside. Faucett, her sister Sudie Isidro, and her mother Joanne Romero testified.

Judge Mitchell issued a written decision on December 6, 2021. The court denied

Faucett’s motion because she failed to convince the court that she did not knowingly,

voluntarily, and intelligently enter the guilty plea.

On December 16, 2021, Mary Faucett’s third counsel filed a motion for

reconsideration of the order denying withdrawal of the guilty plea. In an accompanying

brief, the motion argued that the court misconstrued the record in denying Faucett’s

motions.

Certain procedural rules govern reconsideration motions. CrR 8.2 prescribes that

a motion for reconsideration be governed by CR 59. Benton-Franklin Counties Superior

5 No. 38690-2-III State v. Faucett

Court Local Rule 59 governs the process of the filing and resolution of a motion for

reconsideration. In 2021, LR 59 imposed six obligations on the movant of a motion for

reconsideration: filing of the motion with the clerk, providing legal authority, preparing

and sending to the court a draft opinion, serving the motion on the opposing party, filing

an affidavit of service, and giving notice to the court administrator by email.

Mary Faucett’s counsel did not accompany the motion to vacate the guilty plea

with a proposed order because, according to counsel, Faucett asked Judge Mitchell to

reconsider a discretionary credibility ruling and crafting a meaningful proposed order

would be superfluous. Counsel did not file an affidavit of service of the motion for

reconsideration on the prosecutor, although the record demonstrates that he occasionally

communicated with the prosecutor between the filing of the motion and the filing of this

second appeal. Counsel admits that he lacks a recollection of serving the prosecutor’s

office, but he averred that his practice was “to walk the 70 feet and deliver copies to the

prosecutor’s office” of the documents he filed with the court. CP at 351. Counsel’s

office is across the street from the Franklin County courthouse, which houses the

prosecutor’s office.

Mary Faucett’s counsel also failed to email the motion for reconsideration to the

court administrator’s office, although the court administrator knew of the motion because

of repeated attempts to obtain a hearing date. Faucett’s counsel did not know of any

defects in the processing of the motion for reconsideration and continued to discuss

resolution of the prosecution with the prosecuting attorney after filing the motion. After

6 No. 38690-2-III State v. Faucett

the State’s attorney raised procedural obstacles to the motion for reconsideration,

Faucett’s counsel refiled the motion for reconsideration with a proof of service.

After filing the motion for reconsideration, Mary Faucett’s counsel called the court

administrator more than once to schedule a hearing date for Judge Cameron Mitchell to

resolve the motion for reconsideration. Because of retirement, Judge Mitchell was not

available beginning December 20, 2022.

To preserve Mary Faucett’s right to appeal the denial of the motion to vacate the

judgment, Faucett’s counsel, on January 7, 2022, filed a notice of appeal of the December

6, 2021 order denying the motion to vacate. The notice stated that Faucett filed the

appeal to protect her rights because she was unable to get a hearing on a motion for

reconsideration. The superior court entered an order of indigency approval of funding the

appeal at public expense and permitting an appellate public defender to replace the third

attorney.

Because the order upon which the appeal was based was entered of December 6,

2021 and the notice of appeal was filed on January 7, 2022, more than 30 days later, this

court scheduled a hearing for a commissioner to consider timeliness. See RAP 5.2(a). A

commissioner of this court ruled that the filing of the unheard motion for reconsideration

extended the time for appeal and the appeal was therefore timely. The motion for

reconsideration remains unaddressed by the superior court.

7 No. 38690-2-III State v. Faucett

LAW AND ANALYSIS

Although Mary Faucett’s notice of appeal filed by her third attorney seeks to

challenge the denial of her motion to vacate the guilty plea, Mary Faucett assigns error, in

appellant counsel’s brief, to the superior court’s failure to address her motion for

reconsideration. In the alternative, Faucett contends that she received ineffective

assistance of counsel because her third attorney failed to comply with local procedural

rules when filing the motion for reconsideration.

Because Mary Faucett seeks remand for a hearing on the motion for

reconsideration, this appeal does not address the merits of the motion to vacate the

judgment and to withdraw the guilty plea. This appeal also does not address the merits of

the motion for reconsideration, which motion parallels the motion to vacate and

withdraw.

In response, the State highlights that Mary Faucett failed to gain Superior Court

Judge Cameron Mitchell’s attention to address the motion for reconsideration. The State,

however, does not argue against this court remanding to the superior court for a review of

the motion for reconsideration. The State concedes that the deadline for Faucett to appeal

the order denying the motions to vacate the judgment and to withdraw her guilty plea

does not loom until after any denial of the motion for reconsideration. In reply, Faucett

emphasizes a local court rule that does not require a party to schedule a hearing on a

motion for reconsideration.

8 No. 38690-2-III State v. Faucett

We characterize the superior court’s failure to address the motion for

reconsideration as a failure to exercise its discretionary authority. The failure to exercise

discretion is itself an abuse of discretion subject to reversal. State v. O’Dell, 183 Wn.2d

680, 697, 358 P.3d 359 (2015).

Because of the difficulty encountered by Mary Faucett in procuring a resolution of

her motion for reconsideration caused in part by the retirement of a superior court judge,

we remand the prosecution to the superior court to entertain the motion. A determination

that a trial court improperly failed to consider an issue properly before it typically

requires a remand. 5 Am. Jur. 2d Appellate Review § 706 (2023). The superior court

may request a hearing or resolve the motion by a written order without a hearing.

We recognize the State’s argument that Mary Faucett failed to comply with LR 59

when filing the motion for reconsideration. The State may forward those arguments to

the superior court on remand. The superior court remains free to forgive strict

compliance with its local rules. Sorenson v. Dahlen, 136 Wn. App. 844, 848, 149 P.3d

394 (2006).

We further recognize that, regardless of whether the superior court grants or

denies the motion for reconsideration, this case will likely return to us by way of an

appeal of the decision on whether to vacate the conviction and allow the withdrawal of

the guilty plea. We might now address the merits of the underlying motion to vacate the

judgment, but neither party has had the opportunity to yet analyze for this court the merits

of this underlying motion.

9 No. 38690-2-III State v. Faucett

CrR 8.2 directs the superior court, in part, to follow the civil rules when

entertaining a motion for reconsideration. In ordering a remand for consideration of the

motion for reconsideration, we note some of the principles emanating from the civil rules,

which principles should also apply to an appeal. We construe the rules to secure the just,

speedy, and inexpensive determination of every action. CR 1. We should prefer

practical solutions over technical solutions whose use might result in frustrating the

purpose of the superior court rules. Kohl v. Zemiller, 12 Wn. App. 370, 372, 529 P.2d

861 (1974). The procedural rules should be administered to eliminate procedural traps.

Gott v. Woody, 11 Wn. App. 504, 508, 524 P.2d 452 (1974).

We direct that a Franklin County Superior Court judge review the motion for

reconsideration after reviewing the case file. Judge Cameron Mitchell need not decide

the motion. Two Washington decisions, one unpublished and one published, mention a

second judge entertaining a motion for reconsideration. In the unpublished decision,

State v. Phet, 127 Wn. App. 1016 (2005), this court found no error in a second judge

reconsidering an evidentiary ruling because of new evidence forwarded by the State. In

Sanderson v. University Village, 98 Wn. App. 403, 408, 989 P.2d 587 (1999), the court

did not address the propriety of the anomaly.

CONCLUSION

We remand the case to the superior court for further action consistent with this

opinion.

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A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_______________________________ Fearing, C.J.

WE CONCUR:

______________________________ Pennell, J.

______________________________ Cooney, J.