J-S57037-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHEL E. GUMBS,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 472 MDA 2019

Appeal from the PCRA Order Entered February 20, 2019

in the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0003414-2016

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 02, 2019

Michel E. Gumbs (“Gumbs”) appeals from the Order denying his first

Petition for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In its Opinion, the PCRA court summarized the procedural history 

underlying this appeal as follows:

On or about August 30, 2016[, Gumbs1] was charged with 

possession with intent to deliver a controlled substance

[(“PWID”)] and possession of a controlled substance. On July 18, 

2017[, Gumbs, represented by Nanda Palissery, Esquire 

(“Attorney Palissery”),] entered a guilty plea to [PWID,] and [he]

was sentenced on the same day to undergo a period of 

incarceration of three to twenty-three months in the Luzerne 

County Correctional Facility. [Gumbs] did not file any postsentence motions or appeals. On November 5, 2018, [Gumbs], 

though counsel, filed a PCRA Petition and[,] on November 26, 

2018[,] filed an amended PCRA Petition. [The PCRA court 

conducted an evidentiary] ... hearing [on the Petition] on 

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1 Relevant to this appeal, Gumbs is a citizen of the Netherlands.
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December 20, 2018[, (“PCRA hearing”), wherein Gumbs alleged 

that Attorney Palissery was] ... ineffective[] for failing to advise 

[Gumbs] of the deportation consequences of his guilty plea[, 

pursuant to Padilla v. Kentucky, 559 U.S. 356, 371, 374 (2010)

(holding that the failure of a criminal defense attorney to advise 

his or her non-citizen client of the immigration consequences of a 

guilty plea renders counsel constitutionally ineffective).

2]

PCRA Court Memorandum Opinion, 2/20/19, at 1 (unnumbered, footnotes

added, some capitalization omitted).

At the close of the PCRA hearing, the PCRA court denied Gumbs’s

Petition. Gumbs then filed the instant timely appeal, followed by a courtordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal. In his appeal to this Court, Gumbs presents the following question for 

our review: “Did the [PCRA] court abuse its[] discretion in denying [Gumbs] 

PCRA relief?” Brief for Appellant at 4.

Gumbs claims that Attorney Palissery rendered ineffective assistance by 

permitting him to plead guilty, without informing him that his plea would result 

in his deportation, pursuant to Padilla, supra. Brief for Appellant at 10. 

As this Court has explained,

[w]hen reviewing the denial of a PCRA petition, we must 

determine whether the PCRA court’s order is supported by the 

record and free of legal error. Generally, we are bound by a PCRA 

court’s credibility determinations. However, with regard to a 

court’s legal conclusions, we apply a de novo standard.

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2 Gumbs alleged in his PCRA Petition that following the entry of his guilty plea, 

agents with the United States Immigration Customs Enforcement agency 

(“ICE”) seized him for mandatory deportation to the Netherlands based upon 

his conviction.
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Commonwealth v. Lee, 206 A.3d 1, 6 (Pa. Super. 2019) (citations omitted).

To be entitled to relief based on a claim of ineffective assistance of

counsel, a PCRA petitioner must establish that (1) the underlying claim is of

arguable merit; (2) there was no reasonable basis for counsel’s action or

failure to act; and (3) but for counsel’s error, there is a “reasonable probability

the result of the proceeding would have been different.” Commonwealth v.

Treiber, 121 A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three

prongs is fatal to a claim of ineffective assistance of counsel. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Counsel is

presumed to provide effective assistance, and it is solely the petitioner’s

burden to prove ineffectiveness. See id. 

Preliminarily, we must address whether Gumbs’s PCRA Petition is timely 

filed. See Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) 

(stating that “[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] 

court has jurisdiction over the petition.” (citation omitted)). Any PCRA petition 

that is not filed within one year of the date the judgment becomes final is 

time-barred, unless the petitioner has pled and proven one of the three 

exceptions to the PCRA’s time limitation set forth in 42 Pa.C.S.A. 

§ 9545(b)(1)(i-iii) (providing that an untimely PCRA petition may be 

considered timely if a petitioner alleges and proves (1) governmental 

interference with the presentation of his claims; (2) discovery of previously 
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unknown facts which could not have been discovered with due diligence; or 

(3) a newly-recognized constitutional right given retroactive application). 

The PCRA court cogently addressed the matter of the timeliness of 

Gumbs’s PCRA Petition, and the merits of his ineffectiveness claim, as follows:

[Gumbs’s] judgment of sentence became final on August 

17, 2017[,] as he did not file a direct appeal or any post-sentence 

motions. [Gumbs] filed [the instant PCRA] Petition ... on 

November 5, 2018. Thus, a timely petition for post[-]conviction 

relief would need to have been filed by August 17, 2018, unless 

the Petition meets one of the three delineated exceptions in 

[section] 9545(b)(i)-(iii).

[Gumbs] argues [that] the second exception under [section]

9545(b)(ii)[, i.e., the newly-discovered facts exception,3] applies, 

claiming he became aware that his guilty plea would result in 

deportation in October 2018; however, this claim lacks merit[,] as 

[Gumbs] knew of this fact when he pled guilty in July 2017. 

[Gumbs] retained [Attorney] Palissery ..., a criminal defense 

attorney with twenty-five years of experience, to represent him in 

connection with the criminal case. Attorney Palissery was aware 

that [Gumbs] was not a citizen of the United States[,] as [Gumbs 

had] completed Attorney Palissery’s intake form, which indicated 

that [Gumbs] was a lawful permanent resident from the 

Netherlands. 

 * * *

Allegations of ineffectiveness in connection with a guilty plea 

will not justify relief unless the ineffectiveness of counsel caused 

[the] defendant to enter an involuntary or unknowing plea. 

Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super. 

2010). If the defendant enters a plea on the advice of counsel, 

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3 This Court has explained the requirements of the newly-discovered facts 

exception as follows: “A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. This rule is 

strictly enforced. Additionally, the focus of this exception is on the newly 

discovered facts, not on a newly discovered or newly willing source for 

previously known facts.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. 

Super. 2015) (citations and quotation marks omitted).
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the voluntariness of the plea depends on whether counsel’s advice 

was within the range of competence which would be expected of 

attorneys in criminal cases. Id. A valid guilty plea must be 

knowingly, voluntarily and intelligently entered. Id.

It is clear that counsel must inform a non[-]citizen 

defendant as to the risk of deportation that may result from a 

guilty plea. Padilla[, supra]. However, [the Pennsylvania 

Superior] Court has interpreted Padilla as requiring counsel to 

inform a defendant as to the risk of deportation, not as to its 

certainty. Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. 

Super. 2013). When the risk of deportation is clear, “the duty to 

give correct advice is equally clear.” Padilla, 559 U.S. at 368.

However, giving correct advice does not necessarily mean that 

counsel must tell a defendant he would definitely be deported.

Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 

2013). As the [C]ourt noted in Escobar, there is no guarantee 

that the United States Attorney General would take all the steps 

necessary to carry out [a] defendant’s deportation. Id.

Here, [Gumbs] alleges that he entered [his] guilty plea ... 

without being advised as to the deportation consequences of his 

plea by [Attorney Palissery]. [Gumbs] testified [at the PCRA 

hearing] that he would have negotiated a different plea or 

[proceeded] to trial had he know[n] he would be deported. 

... [Gumbs] [] pled guilty to one count of [PWID]. The 

negotiated plea agreement was favorable to [Gumbs]. Prior to 

pleading guilty, Attorney Palissery advised [Gumbs] that he could 

be subject to deportation. Attorney Palissery discussed the 

deportation consequences of the plea with [Gumbs,] in the 

presence of an agent from the [immigration] office of the 

[Pennsylvania] Attorney General at the preliminary hearing, at 

Attorney Palissery’s office after [Gumbs] was released on bail, and

on the day of the plea hearing. Attorney Palissery also emailed 

[Gumbs’s] family member, confirming that [counsel had]

discussed the deportation consequences with [Gumbs]. 

[Gumbs] had a clear understanding that his plea may result 

in deportation and willingly proceeded with the plea, stating, “I 

am not worried about ICE, I am not worried] about that. What I 

am worried about right now is what is going to happen in this 

hearing....” Attorney Palissery further advised [Gumbs] to contact 

an immigration attorney for the deportation issue. 
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Additionally, this court finds the testimony presented by 

Attorney Palissery at the PCRA hearing to be credible. He advised 

[Gumbs] that his guilty plea may result in deportation and to 

consult an immigration attorney. Accordingly, [Gumbs’s] 

ineffectiveness claim lacks merit[,] as Attorney Palissery provided 

the requisite advice regarding [Gumbs’s] plea and deportation

consequences; [Gumbs] knowingly, voluntarily, and intelligently 

entered into his guilty plea agreement. Therefore, [Gumbs’s 

PCRA] Petition ... is untimely, raises no issues of merit, and must 

be denied.

PCRA Court Memorandum Opinion, 2/20/19, at 2-3, 5-6 (unnumbered, 

footnote added, citations to record and some capitalization omitted).

Our review discloses that the PCRA court’s findings are supported in the 

record, and its legal conclusions are sound. See id. We therefore affirm on 

the basis of the foregoing in concluding that the PCRA court properly denied 

Gumbs’s PCRA Petition, see id., with the following addendum.

To the extent that Gumbs emphasizes that “[p]aragraph six of the 

[guilty] plea form signed by [Gumbs] and [Attorney Palissery] asks if the 

defendant is a U.S. citizen[;] [t]hat box was not checked[,]” Brief for Appellant 

at 11, this claim entitles Gumbs to no relief. The record supports the PCRA 

court’s finding that Attorney Palissery had advised Gumbs, on several 

occasions, about the potential deportation consequences. Moreover, there is 

no merit to Gumbs’s attempt to distinguish the instant case from McDermitt, 

supra, and Escobar, supra. See Brief for Appellant at 11. Finally, to the 

extent that Gumbs challenges the PCRA court’s credibility determination 

concerning Attorney Palissery’s testimony at the PCRA hearing, see id. at 11-
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12, it is well established that this Court may not disturb such credibility 

determinations where, as here, they are supported by the record. See, e.g.,

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014) (en

banc).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/02/2019