J-S23026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RYDELL MIDDLETON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2570 EDA 2022

Appeal from the PCRA Order Entered August 15, 2022,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001913-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 29, 2023

Rydell Middleton appeals from the order denying without a hearing his 

first timely petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541–9546. We affirm the PCRA court’s dismissal of Middleton’s 

petition but vacate his judgment of sentence and remand for the trial court to 

correct its sentencing order.

On May 6, 2019, Middleton entered a negotiated guilty plea to robbery 

and receiving stolen property. Middleton agreed to the following factual basis:

[O]n August 8, 2017, shortly before 1:05 a.m. [the 

Complainant] was working for Domino’s Pizza and was making a 

food delivery to 1621 South Newkirk Street in the City and County 

of Philadelphia. The number used to place that order was (267) 

404-3939. Upon arriving [at that address], [the Complainant] 

called the number used to place the order but no one answered.

As he was going back to his car, he observed a male who 

was about five-nine, medium-build, wearing a black ski mask, 

hooded sweatshirt and jeans walking towards him. The male 
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reached into his waistband. A struggle ensued between [the 

Complainant] and that individual. [The Complainant] was afraid 

that he didn’t want to get hurt and began to back away, at which 

point the person in the ski mask got into [the Complainant’s] 

vehicle and fled westbound on Tasker. 

Police tried to locate the car via the cell phone that was in 

there. In addition to the car that was taken which was a 2014 

Nissan Sentra with PA tag KDJ8704, there were two iPhones and 

his wallet. A search was conducted for that phone number that 

was used to place the order, (267) 404-3939. It was - - the user 

name associated with it was Rice Bags 247 and an email address 

of ricebags247@gmail.com. A search warrant was issued on 

Google for that account.

A few days later on the 12th a woman by the name of 

Chelsea Cantwell arranged to buy a 2014 Nissan Sentra with PA 

tags KDJ8704. She came into Philadelphia and agreed to pay 

$900 as well as give over her vehicle in exchange for the Nissan 

Sentra. In order to facilitate that transaction, she had been 

texting with a number of (215) 315-8036. That phone number 

belongs to [Middleton].

A search warrant was also issued for an Instagram account 

of Rice Bags [247]. From that, Your Honor, there were a number 

of messages that were received in the days in between the 8th and 

12th, which is when the car was sold. A number of messages 

coming from Rice Bags [247] stating: Do you know of any chop 

shops? I got a 2014 Maxima, bro.

On the 8th of August, there was a message with the - - 2014 

Nissan Sentra with the previously stated PA tag coming from that 

Instagram account as well, as well as a number of other messages 

asking for chop shops, trying to get rid of a hot 2014 Nissan Sentra 

as well as a message coming from Rice Bags stating: Yo, call me 

now. It’s important. (215) 315-8036, which is the number that 

Chelsea Cantwell was communicating with in order to facilitate the 

sale of the vehicle.

Police later recovered the vehicle and it was returned to [the 

Complainant].

N.T. 5/6/19, at 20-23. This incident occurred while Middleton was on state 

parole. 
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After entering his plea, Middleton agreed to proceed directly to 

sentencing and the trial court imposed the negotiated aggregate sentence of 

three to six years of incarceration. Middleton’s robbery conviction constituted 

a second strike pursuant to Section 9714 of the Judicial Code. However, as 

part of the plea agreement, the Commonwealth did not seek the mandatory 

sentence for that conviction. In addition, the Commonwealth withdrew three 

other charges. Middleton filed neither a post-sentence motion nor a direct 

appeal.

On May 18, 2020, Middleton filed a pro se PCRA petition. Although the 

PCRA court sought the appointment of counsel for Middleton, privatelyretained counsel filed an amended petition on January 14, 2022. The 

Commonwealth filed a motion to dismiss on May 18, 2022. On July 19, 2022, 

2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Middleton’s petition without a hearing. Middleton did not file a response. By 

order entered August 15, 2022, the PCRA court denied Middleton’s petition. 

This timely appeal followed. Both Middleton and the PCRA court have complied 

with Pa.R.A.P. 1925.

Middleton raises the following issues on appeal, which we have 

reordered as follows:

1. Did the [PCRA] court err, abuse its discretion, and/or 

make a mistake of law when it denied, as a matter of 

law, [Middleton’s] PCRA claim that trial counsel was 

ineffective for advising [him] to plead guilty to the 

criminal offense of robbery when the facts placed on the 

record by the Commonwealth did not support a 

conviction for this criminal offense?
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2. Did the [PCRA] court err, abuse its discretion, and/or 

make a mistake of law when it denied, as a matter of 

law, [Middleton’s] claim that counsel was ineffective for 

advising him that if he entered into a guilty plea, his 

sentence would run concurrent to the time imposed on 

his state parole violation?

Middleton’s Brief at 6.

This Court’s standard of review for an order dismissing a PCRA petition 

calls for us to “determine whether the ruling of the PCRA court is supported 

by the evidence and free of legal error. The PCRA court’s factual findings will 

not be disturbed unless there is no support for the findings in the certified 

record.” Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020) 

(citing Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)).

The PCRA court has discretion to dismiss a petition without 

a hearing when the court is satisfied that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings. [See Pa.R.Crim.P. 

909(B)(2).] To obtain reversal of a PCRA court’s decision to 

dismiss a petition without a hearing, an appellant must show that 

he raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise 

abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations 

omitted). Regarding a claim that counsel was ineffective:

It is well-established that to succeed on a claim asserting 

the ineffective assistance of counsel, the petitioner must plead and 

prove, by a preponderance of the evidence, three elements: (1) 

the underlying claim has arguable merit; (2) counsel had no 

reasonable basis for his or her action or inaction; and (3) the 

petitioner suffered prejudice as a result of counsel’s action or 

inaction. Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa. 

1987). If a petitioner fails to satisfy any of the three prongs of 
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the ineffectiveness inquiry, his claim fails. Commonwealth v. 

Brown, 196 A.3d 130, 150–51 (Pa. 2018).

Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022) (citation 

formatting altered).

With respect to claims that plea counsel was ineffective:

Ineffective assistance of counsel claims arising from the 

plea-bargaining process are eligible for PCRA review. Allegations 

of ineffectiveness in connection with the entry of a guilty plea will 

serve as a basis for relief only if the ineffectiveness caused the 

defendant to enter an involuntary or unknowing plea. Where the 

defendant enters his plea on the advice of counsel, the 

voluntariness of the plea depends on whether counsel’s advice 

was within the range of competence demanded of attorneys in 

criminal cases.

The standard for post-sentence withdrawal of guilty pleas 

dovetails with the arguable merit/prejudice requirements 

for relief based on a claim of ineffective assistance of plea 

counsel, ... under which the defendant must show that 

counsel’s deficient stewardship resulted in a manifest 

injustice, for example, by facilitating entry of an unknowing, 

involuntary, or unintelligent plea. This standard is 

equivalent to the “manifest injustice” standard applicable to 

all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 

2005) (en banc)[.]

Commonwealth v. Kelley, 136 A.3d 1007, 1012–13 (Pa. Super. 2016) 

(some citations omitted). Notably, a PCRA petitioner cannot assert grounds 

for withdrawing a guilty plea that contradict his statements made under oath 

in a guilty plea colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. 

Super. 2013) (citing Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 

2007)).
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In his first issue, Middleton essentially challenges the factual basis for 

his guilty plea to robbery. Middleton asserts that there was “no evidence 

placed on the record by the Commonwealth that prove[d], beyond a 

reasonable doubt, that [he] robbed the complainant.” Middleton’s Brief at 17. 

Middleton therefore contends that Commonwealth’s case to support his 

robbery conviction was “entirely predicated on circumstantial evidence.” Id.

at 18.

In addition to providing that a guilty plea be offered in open court and 

setting forth the procedure to determine the validity of the plea, Rule 590 of 

the Pennsylvania Rules of Criminal Procedure also requires the trial court to 

determine “whether the facts acknowledged by the defendant constitute a 

prohibited offense.” Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 

1984). Here, the PCRA court found no arguable merit to Middleton’s claim:

A person is guilty of robbery if, in the course of committing 

a theft, he threatens another with or intentionally puts him in fear 

of serious bodily injury. 18 Pa.C.S. § 3701(a)(ii). The facts as 

recited by the Commonwealth and admitted by [Middleton] 

established that on August 8, 2017, at 1:05 a.m., [Middleton] 

wearing a ski mask and reaching into his waistband, approached 

the Complainant . . . who was making a food delivery at 1621 

Newkirk Street. After a struggle between [Middleton] and the 

Complainant, the Complainant backed away because [Middleton] 

was reaching into his waistband and the Complainant “didn’t want 

to get hurt.” [Middleton] then entered the Complainant’s vehicle, 

a 2014 Nissan Sentra with Pennsylvania tags KDJ8704, and drove 

away. These circumstances demonstrate that [Middleton], while 

committing a theft, intentionally put the Complainant in fear of 

immediate serious bodily injury. Therefore, the facts as recited 

were sufficient to establish the offense of Robbery.
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[Middleton] further claimed that there was no direct 

evidence placed on the record that proved his identity as the 

[r]obber. This claim is also meritless. A search was conducted 

for the telephone number that was used to place the pizza order 

that brought the Complainant to the location of the robbery (267-

404-3939). The same phone number was associated with a user 

“Rice Bags 247.” A search warrant was issued for the Rice Bags 

[247] Instagram account which revealed the account holder 

inquiring about chop shops to get rid of a “hot Nissan Sentra.” 

Another message sent from the Rice Bags [247] account 

stated, “Yo, call me now. It’s important (215) 315-8036.” That 

phone number belonged to [Middleton]. The same number was 

used to arrange the sale of the Complainant’s 2014 Nissan Sentra 

to Chelsea Cantwell. 

***

Sufficient evidence of the elements of robbery and the 

identity of [Middleton] were recited at the plea hearing and 

explicitly admitted by [Middleton]. Therefore, [Middleton’s] claim 

that insufficient evidence existed to support a negotiated guilty 

plea was without merit. 

PCRA Court’s Opinion, 10/21/22, at 5-6 (footnotes and citations omitted). Our 

review of the record supports the PCRA court’s conclusion. 

Middleton’s claims to the contrary are unavailing. He asserts that the 

evidence placed on the record by the Commonwealth at the guilty plea hearing 

would have been insufficient to prove his identity as the robber had the case 

gone to trial. Middleton’s Brief at 21. According to Middleton, at most, the 

facts presented by the Commonwealth proved that he received a stolen 

vehicle. Id. at 19. We disagree.

Even though evidence of his identity as the robber was circumstantial,

it was still sufficient to support Middleton’s guilty plea to both charges. As 
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succinctly stated by the Commonwealth, “[t]he facts presented established 

that [Middleton] called for a pizza delivery with a phone number registered to 

his Instagram account and robbed [the Complainant] of his car, then used 

that same account to try to sell the stolen car by soliciting potential buyers to 

call him on a different phone number registered to himself.” Commonwealth’s 

Brief at 5. Thus, Middleton’s first claim of ineffectiveness fails.

In his second issue, Middleton claims that plea counsel was ineffective 

for failing to inform him that the back time he would receive given his parole 

violation could not run concurrent to his new sentence. He then cites to a 

“discussion [that] took place on the record during the guilty plea hearing” that 

left him “with the misimpression that the parole board had the discretion to 

run the sentences concurrently.” Middleton’s Brief at 13-14. According to 

Middleton, “[r]egardless of whether there were conflicting statements made 

in this regard, enough confusion resulted from the [this discussion] that the 

plea could not have been knowing and voluntary.” Id. at 14. In making this 

argument, Middleton likens his case to the recently decided non-precedential 

decision in Commonwealth v. Robinson, No. 913 EDA 2020 (Pa. Super. 

October 20, 2020) and requests the same disposition—a remand for an 

evidentiary hearing.

“Our law presumes that a defendant who enters a guilty plea was aware 

of what he was doing,” and “[h]e bears the burden of proving otherwise.” 

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citations 

omitted).
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The longstanding rule of Pennsylvania law is that a 

defendant may not challenge his guilty plea by asserting that 

he lied while under oath, even if he avers that counsel 

induced the lies. A person who elects to plead guilty is bound 

by the statements he makes in open court while under oath 

and may not later assert grounds for withdrawing the plea 

which contradict the statements he made at his plea colloquy.

Id. On appeal, this Court evaluates the adequacy of the plea colloquy and 

the voluntariness of the resulting plea by looking at the totality of the 

circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. 

Super. 2011).

Section 6138(a)(5)(i) of the Prisons and Parole Code provides:

(5) If a new sentence is imposed on the [parolee], the service 

of the balance of the term originally imposed by a Pennsylvania 

court shall precede the commencement of the new term imposed 

in the following cases:

(i) if a person is paroled from a State correctional institution 

and the new sentence imposed on the person is to be served in 

the State correctional institution.

61 Pa.C.S.A. 6138(a)(5)(i). In Commonwealth v. Kelley, 136 A.3d at 1013-

14, this Court explained that “[i]mposition of a new state sentence concurrent 

with the parolee’s new sentence is an illegal sentence under [Section 6138].” 

Here, the PCRA court found no arguable merit to Middleton’s claim, and 

explained as follows:

Section 6138 provides that it is legally impossible to run 

backtime imposed by the Pennsylvania State Parole Board 

concurrently with a sentence imposed on a new matter that 

constitutes a violation of state parole. 

***
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[Middleton] argued that he was given erroneous information 

by his trial counsel relating to this well settled law. The record 

does not reflect this. [Middleton’s] written and signed plea 

colloquy clearly stated: “the sentence on this guilty plea may not 

run concurrent to (at the same time as) a state (backtime) 

sentence for a parole violation.” During the oral guilty plea 

colloquy, [Middleton] indicated that he and his counsel went over 

his legal rights from the written colloquy line-by-line and that he 

understood everything that was said. 

Furthermore, during the oral guilty plea colloquy, the [court] 

informed [Middleton] that [the] state parole board would have the 

option of imposing further punishment. [Middleton’s] counsel 

stated to the [court] that he informed [Middleton] that it was not 

the practice of the parole board to run any further punishment 

concurrently with his sentence. Therefore, [Middleton] was given 

adequate notice that whether further punishment would run 

concurrently with his aggregate sentence would be at the state 

parole board’s discretion, though that is not the usual practice. 

Consequently, [Middleton’s] contention that counsel was 

ineffective for suggesting a concurrent running of back time with 

his new sentence was meritless, and the [court] did not err when 

in it dismissed his [PCRA petition].

PCRA Court Opinion, 10/21/22, at 7-8 (footnotes and citations omitted).

Our review of the record supports this conclusion. When compared to 

his answers in the written and oral plea colloquies, the only factual issues 

presented were created by Middleton’s self-serving statements within his 

PCRA petition. Willis, supra. 

Moreover, Middleton’s claim that his case is similar to Robinson, supra, 

is unavailing. In that case, Robinson’s written plea colloquy expressly stated 

that the Commonwealth was not opposed to Robinson’s state parole violation 

sentence running concurrent to the sentence to be imposed as a result of the 

guilty plea. Here, the concurrent sentencing scheme was not part of 
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Middleton’s plea agreement, and no such statement was made by the 

Commonwealth prior to the court’s acceptance of the plea. Indeed, as noted 

above, the written plea colloquy expressly informed Middleton that this 

sentencing arrangement was not possible.

In addition, during the guilty plea hearing in Robinson,

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the 

Commonwealth commented that “the other caveat of agreeing to run it 

concurrent, that’s up to the Department of Corrections. It’s simply a 

recommendation to them.” Robinson, non-precedential decision at 8.2 Here, 

the Commonwealth made no such statement. Rather, after the trial court 

imposed sentence and restitution, the court stated, “I think I covered 

everything else, so you can give [Middleton] his appellate rights.” N.T., 

5/6/19, at 34-35. This statement prompted the following exchange:

[PLEA COUNSEL]: Your Honor, the only thing [Middleton] 

wanted me to raise is - - and I think we touched on it during the 

colloquy - - it will be a violation of parole. He realizes that he has 

not been sentenced on that violation yet. So at this point, even if 

Your Honor says that this sentence can run concurrent to all other 

sentences, it won’t guarantee that happens. We would ask if you 

____________________________________________

1 As in this case, it appears that Robinson proceeded immediately to 

sentencing following the entry of his guilty plea. There is no indication in the 

panel decision when the Commonwealth made these comments.

2 While we agree with the Robinson panel’s further statement that the parole 

board does not have discretion to run the new sentence and backtime 

concurrently, we note that the parole board does have the discretion when 

determining whether parole will be revoked. See 61 Pa.C.S.A. § 6138(a)(1); 

N.T., 5/16/19, at 18 (trial court informs Middleton that the state parole board 

“would have the option of imposing further punishment on you”).
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would state for the record that this is concurrent with any other 

sentences, that way it’ll at least give him - - give the option in the 

future of someone to run it concurrently. I told him the parole 

board, that’s not their practice, but. 

THE COURT: I’ll state it’s concurrently, but obviously, it’s 

the parole board and prison that will determine that. 

[PLEA COUNSEL]: Exactly. If, Your Honor states it - -

THE COURT: I did state it.

[PLEA COUNSEL]: - - we appreciate it as well.

N.T., 5/6/19, at 35. Given the written plea colloquy in this case, and 

Middleton’s repeated affirmance that he went over the plea colloquy line by 

line with plea counsel, we are not persuaded that the above exchange caused 

such confusion that a remand is warranted in this case.

In sum, given the totality of circumstances surrounding the entry of his 

guilty plea, Yeomans, supra, the PCRA court correctly determined that 

Middleton’s ineffectiveness claims lacked merit, and that an evidentiary 

hearing was not warranted. We therefore affirm the order denying Middleton 

post-conviction relief.

Nevertheless, we note that the trial court’s May 6, 2019, sentencing 

order does state that the new sentence it imposed was to run “concurrently 

with . . . any other sentence being served.” Order, 5/6/19, at 1. In essence, 

the trial court “tethered” his three-to-six-year sentence “to the sentence under 

which he was then on parole.” Commonwealth v. Coley, No. 1594 MDA 

2022 (Pa. Super., July 25, 2023), non-precedential decision at 9. In doing so, 

the trial court imposed an illegal sentence, as that is a violation of Section 
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6138, supra. Thus, notwithstanding the fact that we are affirming the PCRA 

court’s dismissal of his PCRA petition, Middleton’s “judgment of sentence must 

be vacated and this matter remanded to allow for the correction of the [May 

6, 2019] sentencing order.” Id. at 11.

Order affirmed. Judgment of sentence vacated. Case remanded for 

further proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2023