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Ulisky v. Pennsylvania Board of Probation and Parole10/18/2005
tiated agreement" did not preclude the Board from recommitting Ulisky; the record lacks any evidence of such an agreement and his guilty plea did not include any promise by parole authorities; the transcript of the revocation hearing is proof that it occurred; and the recommitment period is within the presumptive range.
The law is well settled that issues not raised before the government unit are waived and cannot be considered for the first time on appellate review, except where the Court is satisfied that a petitioner by the exercise of due diligence could not have raised the issue before the government unit. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a); Pa. R.A.P. 1551(a); Newsome. In DeMarco v. Pennsylvania Board of Probation and Parole, 758 A.2d 746 (Pa. Cmwlth. 2000), this Court reiterated that upon appellate review it may not decide an issue that a petitioner has failed to raise at any time on appeal before the Board.
The issues that Ulisky has raised before this Court essentially pertain to the Board's September 2003 revocation decision, which he did not challenge within the required administrative appeal period, and they also pertain to his claim that the Board did not provide a timely revocation hearing on June 6, 2003 pursuant to its regulations and that the recommitment period exceeded the presumptive range. There is no indication that Ulisky was prevented from timely raising these issues before the Board, and because of his failure to so act the Court must conclude that the Board properly denied the November 2004 administrative appeals as untimely filed. Nevertheless, the Court notes that the decision to parole or to reparole a petitioner is within the Board's discretion, White v. Pennsylvania Board of Probation and Parole, 833 A.2d 819 (Pa. Cmwlth. 2003), and that the decision to recommit a parolee within the presumptive range likewise is within the Board's discretion. Id.; 37 Pa. Code §75.2. For the reasons discussed, the Court affirms the order of the Board.
AND NOW, this 18th day of October, 2005, the order of the Pennsylvania Board of Probation and Parole is affirmed.
DORIS A. SMITH-RIBNER, Judge
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