Goods v. Pennsylvania Board of Probation and Parole

In Goods v. Pennsylvania Board of Probation and Parole, 590 Pa. 132, 912 A.2d 226 (2006), a parolee was arrested on new criminal charges after he had been reparoled numerous times from his original sentence. Goods, 590 Pa. at 134-35, 912 A.2d at 227. On December 19, 2002, the parolee pled guilty to the new criminal charges. Id. at 135, 912 A.2d at 227. The Board ultimately held a parole revocation hearing on January 5, 2004, during which the parolee did not object to the timeliness of the hearing. Id. at 135, 912 A.2d at 228. After the Board issued a decision recommitting the parolee as a parole violator, the parolee filed an administrative appeal alleging that the Board had failed to conduct his parole revocation hearing in a timely manner. Id. at 136, 912 A.2d at 228. The Board denied the parolee's appeal, finding that he had waived any objection to the timeliness of his parole revocation hearing by failing to raise that issue at the hearing itself. Id. The parolee subsequently appealed the Board's decision to this Court. Id. On appeal, a divided panel of this Court determined that the parolee had preserved his challenge to the timeliness of his parole revocation hearing by raising it in his administrative appeal to the Board. Id. Accordingly, this Court vacated the Board's decision and remanded the matter to the Board to hold an evidentiary hearing and determine the merits of the timeliness issue. Id. at 137, 912 A.2d at 228-29. The Board appealed this Court's decision, arguing that it was inconsistent with Dilliplaine, and the Supreme Court granted review. The Supreme Court ultimately affirmed this Court's decision, opining as follows: As a general and theoretical matter, we see no difficulty or impediment in the Board adopting a policy which would require a parolee to raise any and all ripe claims at the initial hearing level. . . . The fact that we see no impediment in the Board adopting a Dilliplaine-like requirement at the administrative hearing level, however, does not resolve this appeal. The Board's argument is that Dilliplaine itself requires such a rule and that the Commonwealth Court lacked "power" to hold otherwise. This is not so. Dilliplaine did not delve into the administrative law arena, and the issue preservation rule this Court adopted in the Dilliplaine line was a function of our rulemaking authority for the judicial system. It is one thing to say that an administrative agency may adopt an internal issue preservation requirement, and quite another to say that a judicial doctrine requires that such a procedural rule be adopted or employed by an agency. In short, Dilliplaine and its progeny do not independently require that a defendant raise any and all issues at the parole revocation hearing level. That requirement, if there is to be any, is for the Board to determine, at least as an initial matter. The Board does not argue that its existing regulations set forth a requirement (and thereby provide notice of the requirement) that claims must be raised and preserved at the revocation hearing level, or be deemed waived. Instead, the Board cites the Dilliplaine legal theory as its sole basis for arguing that the Commonwealth Court must be deemed to have erred. On the other hand, appellee argues that there are cases from the Commonwealth Court which suggest that a parolee adequately preserves a claim if he raises it either at the hearing level or the administrative appeal level. Brief for Appellee, 3, citing Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996) ("Because the notice issue was not raised before the Board in either the revocation hearing or in Dear's administrative appeal, the issue has been waived and cannot be considered for the first time in his judicial appeal."); Newsome v. Pennsylvania Board of Probation and Parole, 123 Pa. Commw. 413, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989) (claims not raised before Board either at revocation hearing or in administrative appeal are waived). The panel majority below agreed with this position, and indeed, supported its finding that no waiver occurred with a citation to these cases. We are not so certain as appellee that the cases he cites support his position. A notation that a claim was not raised at either administrative level and is therefore waived does not necessarily mean that it would have been preserved if it had been raised at either, rather than both, of the available levels of administrative review. Moreover, although the matter is not entirely clear, this Court's research has unearthed other cases from the Commonwealth Court -- cited by neither party -- which at least seem to suggest that a Dilliplaine-like waiver has been employed on occasion in the administrative parole revocation setting. See, e.g., Hobson, 556 A.2d at 918 (claim that hearing examiner was biased failed because parolee cannot complain of deficiency regarding hearing after hearing has been held); Donnelly, 457 A.2d at 146 (claim that detention hearing was untimely fails because parolee failed to raise claim prior to revocation hearing); Whittington, 404 A.2d at 783 ("the failure to hold a timely detention hearing in the absence of a timely objection in no way affects the validity of a subsequent revocation hearing"). . Since the Board confines itself to its Dilliplaine-based argument, we need not and will not resolve whether appellee's claim could be deemed waived under an independent waiver doctrine properly adopted by the Board. It is enough to note that, although it might be proper and salutary for the Board to adopt a Dilliplaine-like issue preservation requirement in the administrative parole revocation setting, we reject the Board's invitation to hold that Dilliplaine itself commands a finding of waiver here. Finding no merit in the waiver argument as forwarded by the Board, we affirm the Commonwealth Court's decision, albeit for different reasons than were articulated below. Goods, 590 Pa. at 143-149; 912 A.2d at 233-37.