State v. Wherry

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

MARCUS B. WHERRY, Petitioner.

No. 1 CA-CR 25-0316 PRPC
FILED 09-17-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2005-012501-001
The Honorable Suzanne Marie Nicholls, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Rosenstein Law Group, PLLC, Scottsdale
By Angela Charlene Poliquin
Counsel for Petitioner

STATE v. WHERRY
Decision of the Court

MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Andrew J. Becke joined.

F A B I A N, Judge:

¶1 Marcus Wherry petitions for review from the superior court’s
summary dismissal as untimely of his petition for post-conviction relief
(“PCR”) filed under Arizona Rule of Criminal Procedure 32.1(a). This is
Wherry’s first petition, following a previously dismissed notice of PCR.
Because this Court never issued a mandate, it retained jurisdiction, and the
deadlines for filing a PCR were never triggered. We grant review and relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On September 1, 2005, a grand jury indicted Wherry on five
counts of sexual conduct with a minor and one count of molestation of a
child alleged to have occurred between July 16, 2001, and June 21, 2005.
Wherry was convicted by a jury on all six counts. He is serving three
consecutive life sentences and various shorter sentences of imprisonment.

¶3 Wherry’s motion for a new trial was denied and he timely
filed a notice of appeal, identifying his appellate counsel as “TBD.” In June
2007, this Court dismissed Wherry’s appeal for failure to make financial
arrangements to prepare transcripts or otherwise file an application to
proceed as indigent. However, this Court never issued a mandate. The
order of dismissal was mailed to his trial counsel and Wherry himself,
although Wherry claims his copy was sent to the incorrect address and he
did not receive it.

¶4 In 2008, Wherry filed a complaint with the State Bar of
Arizona against his trial counsel for, among other things, failing to
withdraw as counsel of record so Wherry could attain indigent status and
receive appointed counsel for his appeal.

¶5 On January 13, 2014, Wherry filed a notice of PCR, asserting
Ineffective Assistance of Counsel (“IAC”) “at all stages of trial” and other
claims. He provided no explanation for his untimeliness, and the superior
court summarily dismissed the notice.

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STATE v. WHERRY
Decision of the Court

¶6 In 2023, Wherry filed another notice of PCR and in 2024, he
filed his first petition for PCR. Wherry brought several claims under Rule
of Criminal Procedure 32.1(a), including denial of the “right to counsel on
appeal,” “ineffective assistance of appellate counsel,” “depriv[ation] of a
timely Rule 32 petition for post-conviction relief because he was unaware
of the appeal’s dismissal,” and “denial of the right to a meaningful appeal.”
All of Wherry’s claims stem from his trial counsel’s failure to withdraw
from representation when filing Wherry’s notice of appeal.

¶7 At a status conference in April 2025, the court dismissed
Wherry’s petition as “untimely on its face.” Wherry timely filed a petition
for review with this Court. We have jurisdiction under Arizona Rule of
Criminal Procedure 32.16(a).

¶8 We will not disturb the superior court’s ruling on a petition
for PCR absent a clear abuse of discretion. Wherry has the burden to show
that the superior court abused its discretion by denying the petition for PCR
as untimely. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011); State v.
Anderson, 257 Ariz. 226, 230 ¶ 13 (2024). A court abuses its discretion if it
errs on a question of law. State v. Swoopes, 216 Ariz. 390, 393 ¶ 4 (App. 2007).
We review the interpretation of the Arizona Rules of Criminal Procedure de
novo. State v. Macias, 249 Ariz. 335, 339 ¶ 8 (App. 2020).

¶9 Wherry brings his underlying claims under Rule 32.1(a).
Currently, Rule 32.4 requires that such notices be filed “within 90 days after
the oral pronouncement of sentence or within 30 days after the issuance of
the mandate in the direct appeal, whichever is later.” Ariz. R. Crim. P.
32.4(b)(3)(A). At the time of Wherry’s appeal, the deadline for filing a PCR
under Rule 32.4 required that “the notice must be filed within ninety days
after the entry of judgment and sentence or within thirty days after the
issuance of the order and mandate in the direct appeal, whichever is the
later.” Ariz. R. Crim. P. 32.4(a) (2007).

¶10 Thus, the timeline for Wherry to file a PCR did not begin to
run until 30 days from the “order and mandate” in his appeal. Here, this
Court never issued a mandate. Consequently, the deadline for Wherry’s
PCR never began to run.

¶11 Nor can this Court’s order of dismissal be considered a
constructive mandate. Current Rule 31.22 explains: “The mandate is the
final order of the appellate court, which may command another appellate
court, superior court, or agency to take further proceedings or to enter a
certain disposition of a case.” Ariz. R. Crim. P. 31.22(a). “An appellate court

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STATE v. WHERRY
Decision of the Court

retains jurisdiction of an appeal until it issues the mandate.” Id. The order
of dismissal did not command the superior court to take further
proceedings or to enter a certain disposition of the case. Instead, it simply
dismissed the appeal.

CONCLUSION

¶12 We grant review and relief. Because the superior court’s
dismissal of Wherry’s PCR based on timeliness grounds was in error, we
remand for resolution of the PCR on the merits.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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