IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ernest Morrison

, : Petitioner :

:

v. :

: Department of Corrections

, : No. 2002 C .D. 2016 Respondent : Submitted: April 21 , 2017

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABL E ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

JUDGE COVEY FILED: May 2 3 , 2017

Ernest Morrison (Morrison), pro se, petitions this Court for review of the

Pennsylvania Office of Open Records’ (OOR) November 22, 2016 Final

Determination denying his appeal from the Pennsylvania Department of C orrections’

(DOC) denial of his Right

- to

- Know Law (RTKL) 1 request (Request). The sole issue

before th is Court is whether the OOR properly den ied the Request

. 2 Upon review, we

af firm.

Morrison is serving a life sentence without parole as an inmate at the

State Correctional Institution at Dallas (SCI

- Dallas). On September 28, 2016,

Morrison submitted the Request to DOC’s RTKL O ffice seeking : “ A true and correct

copy of the ‘Writt en Judgment of Sentence Order’ [(Sentencing Order)] which

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101

- 67.3104.

2 In his Statement of Questions Invol ved, Morrison set s forth the f ollowing issues: (1)
whether DOC erred by committing him without a proper and legal sentencing order; (2) whether the
sentencing court erred by failing to provide a proper and legal sentencing order to DOC; and, (3)
whether the sentencing court erred by im posing a life sentence without parole in the absence of
statutory authority to do so. However, because th e se issues relate to Morrison’s sentencing and not
his Request, they are not properly before this Court.2

contains (1) the Judge[’]s [s] ignature; (2) [t] he [s] tate [he] was [s] entenced under and

(3) [t] he [s] tatutory [a] uthorization [] for the following [D]ocket No(s) CP # 171 &

172/1973.” Certified Re cord (C.R.) Item 1 at 4. By October 13, 2016 letter, 3 DOC’s

RTKL Office denied the Request for the following reason: “The record(s) that you

requested do not currently exist in the possession of [DOC].” C.R. Item 1 at 3.

On October 26, 2016, Morrison appealed from the denial to the OOR

, arguing: (1) the denial “is an err[or;]” (2) the Sentencing Order is needed to

determine whether he is lawfully committed to DOC’s custody; (3) the admission that

the Sentencing Order does not exist supports his claim t hat he is being unlawfully

held; (4) the denial was confusing and misleading, since it should have been

presented to DOC as proof of his conviction and sentencing; and, (5) “[t]here is an

encroachment into [Pennsylvania Rule of Criminal Procedure] 114 ; [Se ctions 9753,

9736 and 9764 of the Sentencing Code,] 42 Pa.C.S. §§ 9753, 9736, & 9764 (inter

alia), and a person does not run a foul [sic] of the law unless he/she violates a specific

statute[.]” C.R. Item 1 at 2.

By November 2, 2016 letter, DOC not ified OOR of its position :

Diane Yale [(Yale)] , Records Supervisor at SCI[

- ]Dallas,

located [ Morrison’s April 17, 1974 Adult Male

Commitment Form ,] the attached ‘court commitment form.’ However, to the extent the court commitment form is not responsive, [ DOC] included an attestation from [] Yale attesting that following a reasonable search[,] no other responsive records exist [(Affidavit)] .[] Since the requested records do not exist within the possession, custody, or control of [DOC], [DOC] responded app ropriately.

C.R. Item 3 at 1. Morrison did not challenge the Affidavit. See C.R. Item 4 at 1. O n

3 On September 29, 2016, the RTKL Office ext ended its final response date to November 4,

2016. See C.R. Item 1 at 4.3

November 22, 2016, the OOR issued the Final Determination denying Morrison’s

appeal, stating:

Under the RTKL, an affidavit may serve as sufficient

evidenti ary support for the nonexistence of records. See Sherry v. Radnor Twp. Sch. Dist. , 20 A.3d 515, 520

- 21 (Pa.

C [mwlth.] 2011); Moore v. Office of Open Records , 992 A.2d 907, 909 (Pa. C [mwlth.] 2010). In the absence of any competent evidence that [DOC] acted in bad faith or that records exist in the possession of [DOC]

, ‘ the averments in [the [A] ffidavit] should be accepted as true. ’ McGowan v. Pa. Dep’t of Envtl. Prot. , 103 A.3d 374, 382

- 83 (Pa.

C [mwlth.] 2014) (citing Office of the Governor v. Scolforo

, 65 A.3d 1095, 1103 (Pa. C [mwlth.] 2013)). Based on the evidence provided, [DOC] has met its burden of proving that no records exist in [DOC’s] possession, custody or

control. [FN] 1 Accordingly, the appeal is denied

.

[FN]1. While [DOC] does not possess the r equested sentencing orders, there exists a common law right of access to judicial records. Commonwealth v. Upshur , 924 A.2d 642 (Pa. 2007). The common law right of access to public judicial records and documents arose from the presumption that judicial

p roceedings will be open to the public. As the Supreme Court has stated, ‘[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.’ Nixon v.

Warner [ Commc’ns ] , Inc. , 435 U.S. 589, 591 (1978) (footnotes omitted). The Pennsylvania Supreme Court has viewed the common law right of access as compelled by many of the considerations that underlie the presumption of public trials. See

Commonwealth v. Fenst ermaker , 530 A.2d 414,

417

- 18 (Pa. 1987). The records sought, if they exist, may be requested from the issuing court.

C.R. Item 4 at 1

- 2. Morrison appealed to this Court. 4

4
“ [A] reviewing court, in its appellate jurisdiction, independently reviews the OOR ’ s orders and may substitute its own findings of fact for that of the agency. ” Moore , 992 A.2d at 909 n.5 (quoting Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) [, aff’d , 75 A.3d4 On appeal to this Court, Morrison does not challenge the OOR’s Final

Determinat ion, but rather “ attempts to raise a due process challenge to his continued

confinement. According to [ Morrison] , if the record does not exist, then his

confinement is invalid because it is illegal for the [DOC] to hold him without a

signed judgment of se ntence. ” Moore , 992 A.2d at 909

- 10 ; see Morrison Pet. for

Review, see also Morrison Br. at 5

- 6. In fact, Morrison’s brief concludes with the

following disclaimer:

IT IS NOT AND WAS NO T THIS PETITIONER ’ S INTENTION OR

AIM TO APPEAL THE FI NDINGS OF [ DOC ’ S ] [ RTKL ] OFFICE

OR THE [ OOR ] STATING THAT THE [ SENTENCING ORDER ] IS

NOT IN [ THE DOC ’ s ] POSSESSION [,], IT HAS ALWAYS BEEN H IS

AIM TO CHALLE N GE HIS DETENTION AND CONFINEMENT BEING

UNCONS T ITUTIONAL WITHOUT TH IS LAWFUL DOCUMENT [.]

THE FACT OF THE MATT ER IS THAT [ DOC ’ s ] AFFIDAVIT

SUPPORTS HIS CLAIMS

.

Morrison Br. at 27 (emphasis added).

I n Moore , this Court held that “ an appeal from an OOR order denying

[ an inmate’s ] request for access to a public record is not the proper forum to

challenge the constitutionali ty of his continued incarceration

. ” Id. at 910

(emphasis added) ; see also Scott v. P a. Dep ’ t of Corr

. (Pa. Cmwlth. No. 133 C.D.

2016, filed January 27, 2017) ( “It is not the Court’s role to help a litigant find a

document or to review the legality of a cr iminal prosecution or conviction.” ) Slip op.

at 3 ; Whitaker v. P a. Dep ’ t of Corr. (Pa. Cmwlth. No. 1781 C.D. 2012, filed Mar ch 8,

2013) (“ [T] he RTKL is not a vehicle through which an individual can collaterally

attack the legality of his criminal confineme nt. The RTKL does not contain any

453 (Pa. 2013)]

. . . . “ [A] court reviewing an appeal from an OOR hearing officer is entitled to the broadest scope of review. ” Id. ( quoting Bowli ng, 990 A.2d at 820 )

. On April 24, 2017, Morrison filed a n “Objection to [ DOC’s ] B rief ,” which the Court will treat as a reply brief

.5

statutory provisions or procedures providing an individual with a right or avenue to

declare his underlying judgment of sentence a legal nullity. ” ) S lip op. at 3

- 4

. 5

Because in this case Morrison does not challenge th e OOR’s denial of

his appeal, but rather seeks relief outside the RTKL, this Court must affirm the

OOR’s Final Determination. 6 Based on the foregoing, the OOR’s Final

Determination is affirmed.

___________________________ ANNE E. COVEY, Judge

5 We acknowledge that t his Court’s unreported memorandum opinions may be cited “for

[their] persuasive value, but not a s a binding precedent.” Section 414 (a) of the Commonwealth Court’s Internal Operating Procedures

, 210 Pa. Code § 69.414(a)

. Because Scott and Whitaker
involved substantially similar circumstances to the instant case , th e Court’s reasoning therein is

pers uasive to the curr e nt action

.

6 Despite that Morrison’s appeal to the OOR was based primarily upon his claims that he is
being unlawfully incarcerated, Morrison also included therein that the Request was improperly

denied on the basis that DOC did not poss ess the Sentencing Order. See C.R. Item 1 at 2.
Accordingly, t he OOR’s Final Determination properly addressed that issue. Finding no error in the OOR’s analysis, had Morrison appealed that issue to this Court , we would have affirmed the Final

Determinat ion.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ernest Morrison, : Petitioner :

:

v. :

: Department of Corrections, : No. 2002 C.D. 2016 Respondent :

O R D E R

AND NOW, this 2 3 rd day of May , 201 7

, the Pennsylvania Office o f

Open Records’ November 22, 2016 Final Determination is affirmed.

___________________________ ANNE E. COVEY, Judge