             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Rhone,                                    :
                        Petitioner               :
                                                 :
                 v.                              :   No. 1690 C.D. 2016
                                                 :   Submitted: April 21, 2017
Pennsylvania Department                          :
of Corrections,                                  :
                 Respondent                      :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                          FILED: June 14, 2017

                 Joseph Rhone, pro se, has petitioned for this Court’s review of a final
determination of the Office of Open Records (OOR) that affirmed the Department
of Corrections’ (Department) denial of Rhone’s request made under the Right-to-
Know Law.1 The Department denied Rhone’s request for a copy of his judgment
of sentence for the stated reason that the record did not exist. On appeal, Rhone
does not challenge the final determination of the OOR, but rather challenges his
detention and confinement. For the following reasons, we affirm.
                 Rhone is an inmate incarcerated at the State Correctional Institution at
Dallas (SCI Dallas). On or about August 8, 2016, he filed a Right-to-Know
request with the Department’s Open Records Officer, seeking a copy of the
“Written Judgment of Sentence Order” for Case Number CP-51-CR-1127427-
1975. Certified Record (C.R.), Item No. 1, at 4. Rhone sought a copy of the

1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.
sentencing order with the judge’s signature; the statute under which he was
sentenced; and the “statutory authorization” to impose a life sentence without
parole. Id. The Open Records Officer denied Rhone’s request on the grounds that
“[t]he record(s) that [he] requested do[es] not currently exist in the possession of
the Department….” Id. at 3.
             On August 24, 2016, Rhone appealed to the OOR. On September 6,
2016, the Department submitted a position statement and the unsworn attestation
of the Records Supervisor at SCI Dallas stating, in pertinent part, as follows:

             I am employed by the Department … as Corrections Records
             Supervisor at the [SCI] at Dallas. If the specific records
             requested above [(Sentencing Order pertaining to CP-51-CR-
             1127427-1975)] were in the possession of this Institution, they
             would be retained as official records in files within my custody.
             After a reasonable search, no responsive records exist within
             my custody, possession or control.

C.R., Item No. 3, at 2.
             The OOR elected to not hold a hearing and denied Rhone’s appeal in
a final determination dated September 29, 2016. The OOR explained that an
affidavit can serve as evidentiary support for the nonexistence of records. C.R.,
Item No. 4, at 1. In the absence of any competent evidence that the Department in
fact possesses the requested records or acted in bad faith, it would accept the
averments in the Records Supervisor’s affidavit as true. Rhone did not submit any
evidence to challenge the Records Supervisor’s statement. The OOR concluded
that, based on the evidence provided, the Department “met its burden of proving
that the records requested do not exist in the Department’s possession, custody or
control.” Id. at 2.



                                          2
              On appeal,2 Rhone does not challenge the OOR’s final determination
upholding the Department’s denial of his request.3               Rather, he challenges his
confinement and detention.         Rhone contends that he is being held unlawfully
because the Department was not provided with the sentencing order. In addition,
Rhone alleges that the sentencing court erred by failing to state the statutory
authority to impose a sentence of life without parole. He asks this Court to hold
that his constitutional and civil rights have been violated by his continued
detention without the proper legal documents and for this Court to remand this
matter to the Court of Common Pleas of Philadelphia County so that he can file a
Writ of Habeas Corpus Ad Subjiciendum.4 Rhone’s Brief at 28. The Department
responds that the OOR’s final determination should be affirmed on the merits and
that a Right-to-Know Law appeal is not the proper forum for Rhone to challenge
the legality of his sentence or confinement.
              The Right-to-Know Law is “designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions.” Hodges v.
Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011) (citation omitted).

2
  This Court’s standard of review of a final determination of the OOR is de novo and our scope
of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
3
  In his brief, Rhone states:
         Petitioner is not appealing the decision of the [Department] RTKL office … or the
         Office of Open Records partial denial of the request for said document, he is in
         fact challenging his confinement and detention.
Rhone’s Brief at 15.
4
  “A writ of habeas corpus ad subjiciendum is defined as ‘[a] writ directed to someone detaining
another person and commanding that the detainee be brought to court.’” Pew v. Mechling, 929
A.2d 1214, 1216 n.1 (Pa. Cmwlth. 2007) (quoting BLACK’S LAW DICTIONARY 715 (7th ed.
1999)).


                                               3
The Right-to-Know Law does not contain “any statutory provisions or procedures”
for “an individual with a right or avenue to declare his underlying judgment of
sentence a legal nullity.” Whitaker v. Department of Corrections, (Pa. Cmwlth.,
No. 1781 C.D. 2012, filed March 8, 2013), slip op. at 3 (unreported).5 It “is not a
vehicle through which an individual can collaterally attack the legality of his
criminal confinement.” Id.; see also Dozier v. Department of Corrections, (Pa.
Cmwlth., No. 1613 C.D. 2016, filed March 16, 2017), slip op. at 3-4; Huntley v.
Department of Corrections, (Pa. Cmwlth., No. 1202 C.D. 2016, filed March 2,
2017), slip op. at 3-5, petition for allowance of appeal filed (Pa., No. 383 MAL
2017, filed May 15, 2017); Quarles v. Department of Corrections, (Pa. Cmwlth.,
No. 901 C.D. 2014, filed November 10, 2014), slip op. at 7-9; Gates v. Department
of Corrections, (Pa. Cmwlth., No. 441 C.D. 2014, filed July 9, 2014), slip op. at 4-
5.
              By contrast, the Post Conviction Relief Act (PCRA)6 “provides for an
action by which ... persons serving illegal sentences may obtain collateral relief.”
42 Pa. C.S. §9542. The PCRA is the “sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same purpose.”
Id. Our Supreme Court has held that “a challenge to the legality of a sentence is
properly raised before the sentencing court or on direct appeal to the Superior
Court.” Aviles v. Department of Corrections, 875 A.2d 1209, 1214 (Pa. Cmwlth.
2005) (citing McCray v. Department of Corrections, 372 A.2d 1127 (Pa. 2005)).


5
   Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
6
  42 Pa. C.S. §§9541-9546.


                                               4
            Because Rhone does not challenge the denial of his Right-to-Know
Law request but, rather, the legality of his detention and confinement, the appeal
procedure under the Right-to-Know Law is not the appropriate vehicle for his
action.
            Accordingly, the OOR’s final determination is affirmed.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                        5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Rhone,                        :
                 Petitioner          :
                                     :
           v.                        :   No. 1690 C.D. 2016
                                     :
Pennsylvania Department              :
of Corrections,                      :
                 Respondent          :

                                 ORDER

           AND NOW, this 14th day of June, 2017, the Final Determination of
the Office of Open Records in the above-captioned matter, dated September 29,
2016, is AFFIRMED.

                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge
