Com. v. Buckner, D.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2014
• Docket: 1184 MDA 2013
• Status: Unpublished

Opinion

J-S46036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DONNELL L. BUCKNER, : : Appellant : No. 1184 MDA 2013

Appeal from the PCRA Order entered on June 17, 2013 in the Court of Common Pleas of Luzerne County, Criminal Division, No. CP-40-CR-0001492-2009

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014

filed pursuant to the Post Convi See 42 Pa.C.S.A.

§§ 9541-

Counsel.

In March 2009, Buckner shot and killed his estranged wife. Buckner

was 34 years old at the time of the murder. On June 28, 2010, Buckner was

found guilty of first-degree murder1 and sentenced to life in prison without

the possibility of parole. This Court affirmed the judgment of sentence, and

the Supreme Court of Pennsylvania denied allowance of appeal. See

1 18 Pa.C.S.A. § 2502(a). J-S46036-14

Commonwealth v. Buckner, 32 A.3d 839 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 40 A.3d 119 (Pa. 2012).

Buckner filed a timely PCRA Petition, pro se, on August 30, 2012,

seeking relief from his judgment of sentence pursuant to Miller v.

Alabama, 131 S. Ct. 2455 (2012).2 The PCRA court appointed Buckner

counsel, who filed a Motion Seeking Appointment of An Expert (

psychological review of Buckner and assist in developing his claim that

mandatory life without parole is unconstitutional under an expansive reading

of Miller. The PCRA court h

to Appoint Expert and subsequently denied the Motion. After another

file a

Attorney Buttner was appointed to represent Buckner for the present appeal.

Counsel. Where counsel seeks to withdraw on collateral appeal, the

procedure outlined in Turner/Finley3 must be followed. In

2 The Miller Court held that mandatory life sentences, without the possibility of parole, for juveniles were unconstitutional. See Miller, 131 S. Ct. at 2464. 3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court

explained that independent review by competent counsel is required before

withdrawal is permitted. Id. at 876 n.1. Such review requires the

following:

1) - extent of his review;

2) - petitioner wished to have reviewed;

3) -

4) The PCRA court conducting its own independent review of the record; and

5) The PCRA court agreeing with counsel that the petition was [without merit].

Id. (citation and brackets omitted).

Further, we have held that the Supreme Court in Pitts did not

expressly overrule the additional requirement imposed by this Court in

Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating

that [] counsel seeking to withdraw [must] contemporaneously forward to the petitioner a copy of the application to withdraw - statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

Here, Attorney Buttner filed a Turner/Finley - a

Petition to Withdraw. Attorney Buttner described the extent of his review,

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identified the issue that Buckner sought to raise, and explained why that

issue lacks merit. In addition, Attorney Buttner provided Buckner with

notice of his intention to seek permission to withdraw from representation, a

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representation. Thus, we conclude that Attorney Buttner has substantially

complied with the requirements necessary to withdraw as counsel. See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as

counsel will satisfy the Turner/Finley criteria).

hether it

is without merit. On appeal, Buckner raises the following question for our

review:

Did the [t]rial [c]ourt err and/or abuse its discretion in failing to appoint an expert to assist [Buckner] in developing his claim that mandatory life without the possibility of parole is unconstitutional, under the Eighth Amendment of the United States Constitution and its Pennsylvania counterpart and under an exp[a]nsive reading of Miller v. Alabama, in that [Buckner] suffered from various psychological disorders at the time of the commission of the offense for which he was convicted?

Turner/Finley Brief at 5. 4

[denying] a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of

not be disturbed unless there is no support for the findings in the certified record. Moreover, a PCRA court may decline to hold a

4 We note that Buckner has filed neither a pro se brief nor retained alternate counsel for this appeal.

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hearing on the petition if the PCRA court determines that

support in either the record or from other evidence.

Commonwealth v. Ortiz, 17 A.3d 417, 420 (Pa. Super. 2011) (citations

omitted).

Buckner contends that the PCRA court erred in denying his Motion to

Appoint Expert because an expansive reading of Miller would apply to his

case and make his life sentence without the possibility of parole

unconstitutional. Turner/Finley Brief at 14-15.

First, Miller does not apply to

adults; it pertains only to those who were juveniles at the time of the crime.

See Miller, 131 S. Ct. at 2464 (specifically referencing juveniles as the

intended subjects of the ruling); see also Commonwealth v. Lawson, 90

A.3d 1, 7 (Pa. Super. 2014) (holding that Miller does not apply to crimes

committed as an adult). Because Buckner was 34 at the time of the crime,

Miller

Expert should have been granted so that he could prove application

is without merit.

Second, the Pennsylvania Supreme Court held that Miller does not

apply retroactively. See Commonwealth v. Cunningham, 81 A.3d 1, 8-9,

11 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 2014 U.S.

LEXIS 4082 (U.S. June 9, 2014). Therefore, even if Miller had applied to

Buckner, despite his age, his claim that the PCRA court erred in denying his

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Motion to Appoint Expert still fails. Thus, Buckner is not entitled to relief,

and the PCRA court properly denied the Motion to Appoint Expert and the

PCRA Petition.

Based upon the foregoing, Attorney Buttner is entitled to withdraw

pursuant to the precepts of Turner/Finley, and we affirm the Order of the

PCRA court.

Petition to Withdraw as Counsel granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014

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