J-S57037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHEL E. GUMBS,                           :
                                               :
                       Appellant               :       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 post-
        sentence 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
____________________________________________


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 court-

ordered 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.


____________________________________________


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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J-S57037-19


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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J-S57037-19


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,
____________________________________________


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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J-S57037-19


     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.

                                    -5-
J-S57037-19



            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-


                                      -6-
J-S57037-19


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




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