J-S90034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

ERIK GUMMINGER

                             Appellant              No. 2763 EDA 2015


                  Appeal from the PCRA Order August 24, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000835-2010


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 08, 2016

        Erik Gumminger (“Appellant”) appeals from the August 24, 2015 order

of the Philadelphia County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1     After careful

review, we affirm.

        On June 22, 2011, Appellant entered a negotiated guilty plea to

receiving stolen property2 and criminal conspiracy3 in the instant matter at

Docket No. CP-51-CR-0000835-2010 (“the theft case”).         Pursuant to the

terms of the agreement, the trial court sentenced Appellant to two to five

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3925.
3
    18 Pa.C.S. § 903.
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years’ incarceration. At the same June 22, 2011 proceeding, the trial court

sentenced Appellant to a concurrent term of two to five years’ incarceration

on an unrelated drug case at Docket No. CP-51-CR-0007842-2010 (“the

drug case”).

        On June 18, 2012, Appellant filed a single pro se PCRA petition in both

the drug case and the theft case. Appellant claimed in this petition that his

plea agreement was improper because it failed to properly account for credit

due Appellant for time served, although he did not specify to which sentence

the credit should apply. The PCRA court appointed counsel, who amended

the PCRA petition and claimed Appellant was entitled to a new trial based on

after-discovered evidence related to an ongoing investigation of the police

officers involved in the drug case.4

        Because    Appellant’s    PCRA     allegations   concerned   his   convictions

stemming from the drug case alone, the Commonwealth moved to dismiss

the PCRA petition with respect to the theft case. The PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss, to which Appellant responded

on July 2, 2015. The PCRA court dismissed the petition without a hearing on

August 24, 2015.5 On September 11, 2015, Appellant filed a timely notice


____________________________________________


4
  The federal government later charged the police officers with robbery,
falsification of records, RICO violations, and related crimes. The officers
were later found not guilty of these charges in federal court.
5
    Also on August 24, 2015, the Commonwealth nolle prossed the drug case.



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of appeal. Both Appellant and the Commonwealth complied with Pa.R.A.P.

1925.

        Appellant raises the following questions for our review:

        I. Whether the court erred in denying Appellant’s PCRA petition
        without an evidentiary hearing on the issues raised in the
        amended       PCRA    petition   regarding    trial   counsel’s
        ineffectiveness[?]

        II. Whether the court erred in not granting relief on the PCRA
        petition alleging Appellant’s guilty plea was not entered
        knowingly, intelligently, and voluntarily[?]

Appellant’s Brief, p. 9.

        In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine 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.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

        Initially, to be eligible for relief under the PCRA, a petitioner must

plead and prove by a preponderance of the evidence that he is “currently

serving a sentence of imprisonment, probation or parole for the crime[.]” 42

Pa.C.S. § 9543(a)(1)(i). A petitioner who has completed his sentence is no

longer eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d

212, 213 (Pa.Super.2009); see also Commonwealth v. Turner, 80 A.3d

754, 765 (Pa.2013) (“due process does not require the legislature to

continue to provide collateral review when the offender is no longer serving



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a sentence.”). This is so even if the petitioner filed his PCRA petition during

the pendency of his sentence. See Commonwealth v. Williams, 977 A.2d

1174, 1176 (Pa.Super.2009) (“As soon as his sentence is completed, the

petitioner becomes ineligible for relief, regardless of whether he was serving

his sentence when he filed the petition.”).

      Here, the trial court sentenced Appellant in the theft case to two to

five years’ incarceration on June 22, 2011.    Appellant’s sentence ended in

June 2016.    As a result, Appellant is no longer eligible for PCRA relief,

despite the fact he was serving his sentence when he filed his petition. See

Soto, supra; Williams, supra.       Accordingly, we affirm the PCRA court’s

order dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2016




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