Com. v. Buckner, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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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 Super. 2011) (unpublished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
-
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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