Com. v. Rockamore, L. ( 2022 )

J-S32011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANYERE AYERS ROCKAMORE :
:
Appellant : No. 288 WDA 2021
Appeal from the PCRA Order Entered January 21, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002064-2017
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 7, 2022
Lanyere Ayers Rockamore appeals from the order, entered in the Court
of Common Pleas of Fayette County, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel seeks
to withdraw his representation on appeal pursuant to Anders v. California,
386 U.S. 738 (1967), and its progeny.1 Upon review, we affirm the PCRA
court’s order and grant counsel’s motion to withdraw.
____________________________________________
1 Counsel erroneously seeks to withdraw under Anders, supra, instead of the
proper procedure espoused in Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). See Commonwealth v. Smith, 700 A.2d 1301 (Pa. Super. 1977)
(counsel seeking to withdraw on direct appeal must satisfy Anders
requirements, while counsel seeking to withdraw from post-conviction
representation under PCRA must satisfy Turner and Finley). We may,
however, still review the petition to withdraw, because an Anders brief
provides a defendant greater protection than a Turner/Finley letter.
Commonwealth v. Widgins, 29 A.3d 816, 820 n.2 (Pa. Super. 2011).
J-S32011-21
This Court previously summarized the relevant facts of this case as
follows:
On January 14, 2017, Rockamore was an inmate at SCI-Fayette
serving a 20 to 40 year sentence for attempted homicide. He had
completed almost 19 years of his sentence and was preparing for
an impending parole hearing.
Rockamore’s unit in the prison was on lockdown and he was not
permitted to leave his floor. However, when he was released from
his cell to take a shower, he went down the steps to the lower
floor. Corrections officer Keith Graft [] ordered Rockamore to stay
upstairs. Rockamore disregarded the order and proceeded
downstairs where he pulled an object out of his waistband and
slipped it through the hole in another inmate’s cell door. It was
against policy for inmates to pass objects in this manner and
Officer Graft ordered Rockamore to stop and reached for his radio
to contact his sergeant for assistance.
Before Officer Graft could call for help, Rockamore grabbed him
by the shirt and struck him in the face. They began to struggle
and Rockamore held him in a headlock. He pushed Officer Graft
under the staircase and Officer Graft hit the back of his head on a
steel beam. Rockamore continued to strike Officer Graft and
pushed him against a wall before other corrections officers were
able to respond. Officers then used pepper spray to subdue him.
Commonwealth v. Rockamore, 786 WDA 2019, at 1-3 (Pa. Super. filed Jan.
2, 2020) (unpublished memorandum decision).
Following a non-jury trial, Rockamore was convicted of aggravated
assault, simple assault, disorderly conduct, and harassment.2 The trial court
sentenced Rockamore in the mitigated range to 5 to 10 years’ incarceration
to be served concurrently to his sentence for attempted homicide. Thereafter,
Rockamore timely filed a post-sentence motion, which the court denied, and
____________________________________________
2 See 18 Pa.C.S.A. §§ 2702(a)(2), 2701(a)(1), 5503(a)(1), and 2709(a)(1)
respectively.
-2-
J-S32011-21
a timely notice of appeal. On direct appeal, this Court affirmed Rockamore’s
judgment of sentence. On July 7, 2020, the Pennsylvania Supreme Court
denied Rockamore’s petition for allowance of appeal.
On August 3, 2020, Rockamore filed the instant PCRA petition, alleging
eligibility for relief based on the imposition of a sentence greater than the
lawful maximum. See 42 Pa.C.S.A. § 9543(b)(1)(vi). Therein, Rockamore
argues that his sentence is unlawful where its effective date is the day of
sentencing, April 18, 2019, rather than the date of the offense, January 14,
2017.3 The PCRA court issued an opinion and order denying Rockamore’s
petition on January 14, 2021. Rockamore timely filed a notice of appeal to
this Court. The PCRA court did not order Rockamore to file a statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Instead, on
March 17, 2021, the PCRA court issued a statement in lieu of opinion,
explaining that the issue Rockamore raised in his petition was meritless. On
April 22, 2021, the PCRA court appointed James Natale, Esquire, as
Rockamore’s counsel.
Instantly, Attorney Natale has filed with this Court an application to
withdraw and accompanying Anders brief; Rockamore has filed a pro se
response thereto. With regard to withdrawal from PCRA representation, our
Supreme Court has stated that independent review of the record by competent
counsel is required before withdrawal is permitted. Such independent review
____________________________________________
3 Rockamore seeks credit for time served between those dates.
-3-
J-S32011-21
requires proof of: (1) a “no-merit” letter by PCRA counsel detailing the nature
and extent of his review; (2) the “no-merit” letter by PCRA counsel listing each
issue the petitioner wished to have reviewed; (3) PCRA counsel’s explanation,
in the “no-merit” letter, as to why the petitioner’s issues are meritless; (4)
independent review of the record by the PCRA or appellate court; and (5)
agreement by the PCRA or appellate court that the petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009);
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),4 this
Court imposed an additional requirement for counsel seeking to withdraw from
collateral proceedings:
PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply to the petitioner both a copy of the “no-merit”
letter and a statement advising the petitioner that, in the
event that the court grants the application of counsel to
withdraw, he or she has the right to proceed pro se or
with the assistance of privately retained counsel.
Id. at 614.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
____________________________________________
4 This Court’s holding in Friend was subsequently overruled on other grounds
by the Supreme Court in Pitts. However, the additional requirement that
counsel provide copies of the relevant documentation to the petitioner remains
intact. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
-4-
J-S32011-21
the record to ascertain if there appears on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Here, counsel has substantially complied with the Turner/Finley and
Friend requirements. Counsel has detailed the nature and extent of his
review, served a copy of his petition to withdraw and brief upon Rockamore
and informed him of his right to proceed pro se or with privately retained
counsel,5 raised Rockamore’s issues in the form of a brief, and explained why
his claims are meritless. We now turn to an independent review of the record
to determine whether his claims merit relief.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by evidence of record and is free of legal error. Commonwealth v. Burkett,
5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a
PCRA court’s decision, our scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the light most favorable to
the prevailing party at the trial level. Id. The PCRA court’s credibility
____________________________________________
5 Delarosa has not raised any additional issues, either pro se or through
private counsel.
-5-
J-S32011-21
determinations are binding on this Court where the record supports those
determinations. Widgins, supra at 820.
In his PCRA petition, Rockamore asserts that his sentence is unlawful
and he is entitled to credit for two years and 94 days of time served because
the court ordered his 5-to-10 year sentence for assaulting Officer Graft to run
concurrent with his 20-to-40 year sentence for attempted homicide, effective
on the date of sentencing rather than the date of the assault. No relief is due.
Pursuant to 42 Pa.C.S.A. § 9760, a sentencing court shall give credit for
time served as follows:
(1) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody as a
result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a
charge is based. Credit shall include credit for time spent in
custody prior to trial, during trial, pending sentence, and pending
the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody under a
prior sentence if he is later reprosecuted and resentenced for
the same offense or for another offense based on the same
act or acts. This shall include credit in accordance with paragraph
(1) of this section for all time spent in custody as a result of both
the original charge and any subsequent charge for the same
offense or for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of
the sentences is set aside as the result of direct or collateral
attack, credit against the maximum and any minimum term of the
remaining sentences shall be given for all time served in relation
to the sentence set aside since the commission of the offenses on
which the sentences were based.
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
-6-
J-S32011-21
occurred prior to his arrest, credit against the maximum term and
any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under the
former charge that has not been credited against another
sentence.
Id. (emphasis added). We have previously explained that a defendant shall
be given credit for time spent in custody prior to the imposition of sentence
“only if such commitment is on the offense for which sentence is imposed.
Credit is not given [] for a commitment by reason of a separate and distinct
offense.” Commonwealth v. Miller, 655 A.2d 1000, 1002-03 (Pa. Super.
1995).
Rockamore seeks credit for his 2019 sentence based on time he spent
in custody from January 14, 2017 to April 18, 2019. However, Rockamore’s
incarceration during that time was the result of his 1999 conviction for
attempted homicide, not the assault of Officer Graft. Accordingly, he is not
entitled to credit for time served, and his sentence is not unlawful. Id.; 42
Pa.C.S.A. § 9760. Finally, our independent review of the record discloses no
other “arguably meritorious issues that counsel, intentionally or not, missed
or misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney
Galloway’s application to withdraw, and affirm the judgment of sentence
Order affirmed. Petition to withdraw granted.
This decision was reached prior to the retirement of Judge Musmanno.
-7-
J-S32011-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2022
-8-