Background
Marcus B. Wherry was convicted in Maricopa County on five counts of sexual conduct with a minor and one count of child molestation. He received three consecutive life sentences plus shorter prison terms. Wherry timely noticed a direct appeal in 2007, but the Arizona Court of Appeals dismissed it after he did not arrange for transcripts or seek indigent status. The court, however, never issued a mandate.
Wherry later pursued post-conviction relief, claiming that trial counsel failed to withdraw after filing the appeal, depriving him of appointed appellate counsel and a meaningful appeal. In 2024, he filed his first PCR petition, but the superior court dismissed it as facially untimely.
The Court’s Holding
The Arizona Court of Appeals granted review and relief, holding that Wherry’s PCR petition was not untimely. Under the applicable versions of Arizona Rule of Criminal Procedure 32.4, the deadline ran from the later of sentencing or 30 days after issuance of the order and mandate in the direct appeal.
Because the appellate court never issued a mandate in Wherry’s direct appeal, the PCR filing period never began. The earlier dismissal order could not serve as a constructive mandate: it merely dismissed the appeal and did not direct further proceedings or a disposition in the superior court. The court remanded for consideration of Wherry’s PCR claims on their merits.
Key Takeaways
- A PCR deadline tied to issuance of an appellate mandate does not begin if no mandate issues.
- An appellate dismissal order is not necessarily a substitute for a mandate.
- The superior court must consider Wherry’s PCR petition on the merits rather than dismiss it as untimely.
Why It Matters
The decision underscores the procedural significance of the appellate mandate. Even where a direct appeal was dismissed years earlier, the court retained jurisdiction until it issued a mandate, and that omission prevented the Rule 32 deadline from starting.