Com. v. Cargile, B. ( 2022 )

J-A06044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON CARGILE :
:
Appellant : No. 1267 WDA 2020
Appeal from the PCRA Order Entered November 4, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014493-2013
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: JUNE 14, 2022
Brandon Cargile, pro se, appeals from the order dismissing, without a
hearing, his second petition filed pursuant to the Post Conviction Relief Act
(PCRA). See 42 Pa.C.S.A. §§ 9541-9546. On appeal, Cargile chiefly contends
that the lower court erred by not recusing itself from his case. Given the
juxtaposition of when his judgment of sentence became final, approximately
six years ago, and the date that he filed the present PCRA petition, some three
years ago, Cargile’s petition is patently untimely. Through the most thorough
reading of Cargile’s brief and reply brief, we are unable to discern him having
demonstrated any exception to the PCRA’s time bar. As such, we are without
jurisdiction to consider the merits of his appeal, and we affirm the order
dismissing his petition.
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
J-A06044-22
Reproduced from his appeal of a prior PCRA petition:
[i]n 2013, [Cargile] was charged with criminal attempt to commit
involuntary deviate sexual intercourse with a child (attempted
IDSI), unlawful contact with a minor, corruption of a minor,
indecent exposure, and endangering the welfare of a child.[1]
This matter proceeded to trial[,] and the jury found [Cargile]
guilty of all charges. The trial court sentenced [Cargile] to serve
consecutive terms of 10 to 20 years of incarceration for attempted
IDSI and unlawful contact with a minor. The trial court imposed
no further penalty for the remaining offenses. [Cargile] did not file
post-sentence motions. On direct appeal, this Court affirmed
[Cargile’s] judgment of sentence, and our Supreme Court denied
[Cargile’s] petition for allowance of appeal on April [1]3, 2016.
Commonwealth v. Cargile, 52 WDA 2015 (Pa. Super. Dec. 30,
2015) (unpublished memorandum), appeal denied, 136 A.3d
978 (Pa. 2016).
Commonwealth v. Cargile, 2018 WL 2251071, at * 1 (Pa. Super. May 17,
2018) (footnotes omitted). Following denial of his petition for allowance of
appeal, Cargile did not seek further review from the United States Supreme
Court.
Cargile filed the current PCRA petition on May 9, 2019, which was
dismissed roughly six months later. “In reviewing the denial of PCRA relief,
we examine whether the PCRA court's determination is supported by the
record and free of legal error.” Commonwealth v. Montalvo, 114 A.3d 401,
409 (Pa. 2015) (citation and internal quotation marks omitted).
____________________________________________
[1]See 18 Pa.C.S.A. §§ 901(a), 3123(b); 18 Pa.C.S.A. § 6318(a)(1); 18
Pa.C.S.A. § 6301(a)(1)(i); 18 Pa.C.S.A. § 3127(a); and 18 Pa.C.S.A. §
4304(a), respectively.
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For a petitioner to seek relief under the PCRA, he or she must satisfy
the jurisdictional requisite of timeliness. See Commonwealth v. Zeigler,
148 A.3d 849, 853 (Pa. Super. 2016). Specifically, PCRA petitions must be
filed within one year of the date a judgment of sentence becomes final. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007); 42 Pa.C.S.A.
§ 9545(b)(1). A judgment becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3).
However, there are three exceptions to the PCRA’s time bar, which
involves a petitioner asserting: (1) newly-discovered facts; (2) interference
by a government official; or (3) a newly-recognized constitutional right. See
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If the claim predicated on one of these three
exceptions arises on December 24, 2017, or thereafter, a petitioner must file
his or her petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).1 Regardless of the claim’s genesis
date, “[o]ur Supreme Court has repeatedly stated it is the petitioner’s burden
to allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Smallwood, 155 A.3d 1054, 1060 (Pa. Super. 2017)
____________________________________________
1 If the claim arises prior to December 24, 2017, it is subject to the dictates
of this subsection’s prior wording, which provided a sixty-day filing period from
the date the claim became known.
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(citation omitted).
Cargile’s judgment of sentence became final in July 2016, which is
ninety days after our Supreme Court denied his petition for allowance of
appeal, and nothing more was sought from the United States Supreme Court.
See Sup. Ct. R. 13(a) (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review.”). As such, because
Cargile’s instant PCRA petition was filed in 2019, it is facially untimely.
In this appeal, Cargile claims that the lower court: (1) erred by not
recusing itself due to bias; (2) erred by “holding voir dire in front of a jury”;
(3) erred by sentencing him in the aggravated range without adequate
reasons; and (4) erred by denying his trial counsel’s motion to withdraw
without a hearing. Appellant’s Brief, at 5. In his reply brief, Cargile asserts
that he has satisfied an exception to the PCRA’s time bar because the court’s
“bias and prejudice were brought to the light by this said court. Calling into
question all the cases [it] presided over in such fashion.” Appellant’s Reply
Brief, at 1 (unpaginated).
In response, the Commonwealth indicates that Cargile “has failed even
to address the subject of the PCRA’s timeliness exceptions, must less
demonstrate how he has fulfilled one of them.” Appellee’s Brief, at 5. We
agree.
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Although Cargile, in his first argument section, avers that the lower
court “held an aggressive bias toward any and all sex offenders even if they
were guilty or not,” Appellant’s Brief, at 10, he does not illuminate which
exception to the PCRA’s time bar this claim falls under, nor does he establish
when he became aware of this alleged bias.
His other arguments suffer from the same, or similar, deficiencies. In
his second issue raised, Cargile’s declares that the lower court “purposely held
a competen[]cy/voir dire in front of the jury to bolster the testimony of the
witness.” Id., at 11. Correspondingly, Cargile claims the court violated
Pennsylvania Rule of Evidence 601(b). Much like his first contention, Cargile
provides no discussion of the PCRA’s time bar nor any indicia of when he
became aware of the court’s so-called erroneous actions.
In his third issue, Cargile maintains that the court abused its discretion
in crafting his aggregate sentence. The appropriateness of raising such an
argument in his present PCRA petition aside, it strains credulity that Cargile
would not have been aware of his own sentence at his sentencing hearing.
Stated differently, Cargile has provided no excuse as to why he could not have
raised a timely challenge to his sentence within sixty days or one year from
the point at which his judgment of sentence became final. Moreover, none of
the three exceptions to the PCRA’s time bar are fairly suggested in this section
of his brief.
Finally, his fourth contention deals with a January 13, 2014 motion to
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withdraw filed by his trial counsel. Again, there is no mention as to the basis
under which he is attempting to circumvent the PCRA’s time bar.
While Cargile had an additional opportunity to provide at least some
level of clarity on the basis or bases relied upon, his reply brief is, much like
his primary brief, insufficient. As stated, supra, although it purports to satisfy
the requirement necessary to get around the PCRA’s time bar, Cargile utilizes
his reply brief to again baldly and vaguely assert that the lower court was
biased and prejudiced toward both him and similarly situated defendants.
As Cargile has failed to discuss, much less prove, that his claims fall
under the auspice of one of the PCRA’s three time bar exceptions and because
it was his burden to do so, we are without jurisdiction to consider the merits
of his underlying claims. Consequently, we are constrained to affirm the PCRA
court’s order dismissing his petition.2
Order affirmed.
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2 In its opinion, the trial court identifies that Cargile was directed to file a
Pa.R.A.P. 1925(b) statement of matters complained of on appeal and even
given an extension of time to do so, but that he never filed such a statement.
See Trial Court Opinion, 7/26/21, at 1 (unpaginated). Cargile’s reply brief
asserts that he “did file a concise statement of errors on June 13, 2021.”
Appellant’s Reply Brief, at 2. In addition, Cargile included his monthly account
statement purporting to demonstrate that he paid for postage in conjunction
with filing his concise statement. Given our disposition in finding that Cargile
failed to overcome the PCRA’s time bar, it is unnecessary to resolve this
ambiguity.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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