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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DONNELL L. BUCKNER, : :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 Convi ction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541- 9546. Additionally, Buckner’s counsel, Robert M. Buttn er, Esq. (“Attorney Buttner”), has filed a separate Petition to Withdraw As Counsel. We affirm and grant Attorney Buttner’s Petition to W ithdraw as Counsel. In March 2009, Buckner shot and killed his estranged wi fe. Buckner was 34 years old at the time of the murder. On June 28, 2010, Buckner was found guilty of first-degree murder 1 and sentenced to life in prison without the possibility of parole. This Court affirmed the ju dgment of sentence, and the Supreme Court of Pennsylvania denied allowance of appeal. See

1 18 Pa.C.S.A. § 2502(a).J-S460 36

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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 Super. 2011) (unpublished memorandum), appeal denied , 40 A.3d 119 (Pa. 2012).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 ( “Motion to Appoint Expert”). Buckner asserted that the expert wo uld conduct a psychological review of Buckner and assist in developing his claim that mandatory life without parole is unconstitutional unde r an expansive reading of Miller . The PCRA court h eld 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 cou rt’s order to file a Concise Statement. Thereafter, Buckner’s PCRA counsel wi thdrew, and Attorney Buttner was appointed to represent Buckner fo r 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 / Finley 3 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-S460 36

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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) 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] contemporaneo usly forward to the petitioner a copy of the application t o withdraw that includes (i) a copy of both the “no

- merit” letter, and (ii) a statement advising the PCRA petitioner that, in the e vent the trial court grants the application of counsel to withdr aw, 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-S460 36

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identified the issue that Buckner sought to raise, and explained why that issue lacks merit. In addition, Attorney Buttner provi ded Buckner with notice of his intention to seek permission to withdraw f rom representation, a copy of the “no

- merit” brief, and advised Buckner of his rights in lieu of representation. Thus, we conclude that Attorney Buttn er has substantially complied with the requirements necessary to withdraw as co unsel. 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 ascertai n w hether it is without merit. On appeal, Buckner raises the follow ing 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 U nited 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 ti me 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 ev idence of record and is free of legal error. The PCRA court’s fi ndings will not be disturbed unless there is no support for the fin dings in the certified record. Moreover, a PCRA court may decline t o hold a

4 We note that Buckner has filed neither a pro se brief nor retained alternate counsel for this appeal.J-S460 36

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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

cas e 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 a t the time of the crime. See Miller , 131 S. Ct. at 2464 (specifically referencing juveniles a s 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 t ime 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 e rred in denying hisJ-S460 36

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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 App oint Expert and the PCRA Petition. Based upon the foregoing, Attorney Buttner is entitle d 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 affi rmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014