Com. v. Gumminger, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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