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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 property2and criminal conspiracy3in 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