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

Respondent ,

v. MARY ANNVALEE FAUCETT ,

Appellant

. )

) ) ) ) ) ) ) ) No. 38690

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UNPUBLISHED OPINION

F EARING , C. J.

— As a matter of precauti on to preserve her right to appeal , Mary Faucett appeal ed 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

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. From a plea of guilty of manslaughter, Mary Faucett appealed the superior court’s earlier denial to dismiss FILED FEBRUARY 1, 2024 In the Offi ce of the Clerk of Court WA State Court of Appeals Division IIINo. 38690

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State v. Faucett

2 homicide charges, which motion she based on an agreement with the State for her to dis close 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 D ecember 3, 2014 homicide of Lorenzo Fernandez , shot by her husband’s cousin. The cousin believed a member of a gang, to which Ferna n dez belonged, shot one of the cousin’s friends.
On the night of Lorenzo Fernandez’s death, M ary Faucett lured Fernandez , under the pretext of sexual relat ions, to an apartment where the homicide occurred. After the shooting, s he house d her husband’s cousin wh ile police searched for him . She t raveled with others to dispose of evidence. Mary Faucett denied part icipation 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

w ithdrew the offer for leniency

. With the progre ssion of the investigation, the State amended the information to reflect mounting ev idence of M ary Faucett’s role in the crime. During th at time, a p ublic defender represented her

. After the State determined the full nature and extent ofNo. 38690

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3 Faucett’s involvement in the homicide, the State filed a fourth amended information that char ged 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.
F aucett did not then know tha t on the date he filed his appea rance to represent her, Crowley had been the subject of an ongoing investigation by the Washington State Bar Association Office of Attorney Discipline (OAD). J ust three days before his appearance on April 20 , the investigat ion had progressed to the point that OAD filed and served Crowley with a Second Amended Fo rm al 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
2 8, 2017. According to Faucett, s he 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.No. 38690

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4 OAD accumulated a ca talog of untrue statements Crowley made to clients, opposing counsel, law enforcement, and court s . On July 18, 2017, John Crowley entered an agreement with OAD, under which he would resign effective September 18, 2017. Then o n August 17, 2017, o n the

re commendation 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 exce ptional sentence of 130 months, twelve months
h igher than the high

- end standard range sentence. She now maintains that Crowley “coerced” her t o plead guilty to first degree manslaughter. Faucett further claims th at C rowley told her she could argue for a lower

- range sentence of 84 months

. Mary Fauce tt 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 Fran klin 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, M ary Faucett, through a third attorne y , 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 couns el. According to Faucett, Crowley failed to advise herNo. 38690

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5 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 c ourt as a personal rest raint petition . We adjudged the motion timely an d remanded the motion to the superior court. On remand, Faucett enlisted a third attorney to vacate the judgment. On Au gust 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 sis ter Sudie Isidro, and her mother Joanne Romero tes tified

. 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, Mar y Faucett’s third counsel file d a motion for
reconsideration of the order denying withdrawal of the guilty plea

. In an accompanying brief, t he motion argued that the court misconstrued the record in denying Faucett’s
motions. Certain procedural rules go vern reconsideration motions. CrR 8.2 prescribes that

a motion for reconsideration be gov erned by CR 59. Benton

- Franklin Counties SuperiorNo. 38690

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State v. Faucett

6 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

recons i deration: 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 s ervice, and giving notice to the court administrator by email. Mary Faucett’s c ounsel 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 c redibility 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 th is second appeal. Counsel a dmits 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 prosecuto r’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 c ounsel 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 th e processing of the motion for reconsideration and continue d to discuss resolution of the prosecution with the prosecuting attorney after filing the motion. AfterNo. 38690

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7 the State’s attorney raised procedural obstacles to the motion for reconsideration, Faucett’s counsel refiled the motion for reconsideration with a pro of 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, Judg e Mitchell was not available beginning December 20, 2022.
T o preserve M ary 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 th e motion to vacate. The notice stated that Faucett filed the appeal to protect her rights because s he 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 e xpense 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, 202 2 , more than 30 days later, th is

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.No. 38690

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8 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 appell ant 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 rule s when filing the motion for reconsideration.
Because Mary Faucett seeks remand for a hearing on the motion for reconsideration, t his appeal does not address the merits of the motion to vacate the judgment and to withdraw the guilty plea. Th is appeal al so does not address the merits of the motion for reconsideration, which motion parallel s 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 t he 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 reconsiderat ion.No. 38690

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9 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 superi or court to entertain the motion. A determination that a trial court improperly failed to consider an issue properly before it t ypically 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 supe rior 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 reconsideratio n, 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 h as had the opportunity to yet analyze for this court the merits of this underlying motion.No. 38690

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10 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 t he 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 shou ld prefer practical solution s 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 pr ocedural 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.No. 38690

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11 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.