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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

Donnell L. Buckner (“Buckner”) appeals from the denial of his Petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. 

§§ 9541-9546. Additionally, Buckner’s counsel, Robert M. Buttner, Esq. 

(“Attorney Buttner”), has filed a separate Petition to Withdraw As Counsel. 

We affirm and grant Attorney Buttner’s Petition to Withdraw as 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

- 2 - 

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 Super. 2011) (unpublished 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 (“Motion to 

Appoint Expert”). Buckner asserted that the expert would conduct a 

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 held an evidentiary hearing on Buckner’s Motion 

to Appoint Expert and subsequently denied the Motion. After another 

hearing, the PCRA court denied Buckner’s PCRA Petition. Buckner filed a 

timely Notice of Appeal and complied with the PCRA court’s order to file a 

Concise Statement. Thereafter, Buckner’s PCRA counsel withdrew, and 

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

Initially, we must address Attorney Buttner’s Petition to Withdraw as 

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).
J-S46036-14

- 3 - 

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) A “no-merit” letter by [] counsel detailing the nature and 

extent of his review; 

2) The “no-merit” letter by [] counsel listing each issue the 

petitioner wished to have reviewed; 

3) [] [C]ounsel’s “explanation,” in the “no-merit” letter, of why 

the petitioner’s issues were [without merit];

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 

that includes (i) a copy of both the “no-merit” letter, and (ii) a 

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 “no-merit” brief and a 

Petition to Withdraw. Attorney Buttner described the extent of his review, 
J-S46036-14

- 4 - 

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 

copy of the “no-merit” brief, and advised Buckner of his rights in lieu of 

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). 

We now independently review Buckner’s claim to ascertain whether 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

This Court’s standard of review regarding an order 

[denying] a petition under the PCRA is whether the 

determination of the PCRA court is supported by the evidence of 

record and is free of legal error. The PCRA court’s findings will 

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. 
J-S46036-14

- 5 - 

hearing on the petition if the PCRA court determines that 

petitioner’s claim is patently frivolous and is without a trace of 

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. 

Buckner’s claim fails for two reasons. 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 does not apply. Thus, Buckner’s claim that his Motion to Appoint 

Expert should have been granted so that he could prove Miller’s 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 
J-S46036-14

- 6 - 

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