issue preservation requirement in Pennsylvania

2019"However, an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant's sentence." Barnes , 151 A.3d at 124 .

2017However, the Pennsylvania Supreme Court in Barnes made clear that “an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Barnes, 151 A.3d at 124 , citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).

2017“Case law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at ‘all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (citation omitted); see also Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive application of a new constitutional rule, a defendant must have raised and preserved the issue in the court below.”), appeal denied, 121 A.3d 496 (Pa. 2015). “[A]n exception to the issue-preser

2017“Case law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at ‘all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016) (citation omitted).

2017However, the Pennsylvania Supreme Court in Barnes made clear that “an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Barnes, 151 A.3d at 124 , citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).

2017However, the Pennsylvania Supreme Court in Barnes made clear that “an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Barnes, 2016 WL 7449232 at *3, citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).

2020“The issue preservation requirement ensure[s] that the trial court that initially hears a dispute has had an opportunity to consider the issue[,] which in turn advances the orderly and efficient use of our judicial resources[,] and provides fairness to the parties.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1274 (Pa. 2014) (internal quotation marks omitted).

2020“The issue preservation requirement ensure[s] that the trial court that initially hears a dispute has had an opportunity to consider the issue[,] which in turn advances the orderly and efficient use of our judicial resources[,] and provides fairness to the parties.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1274 (Pa. 2014) (internal quotation marks omitted).

2017Goods v. Pennsylvania Board of Probation and Parole, 912 A.2d 226, 235-36 (Pa. 2006).

2017Goods v. Pennsylvania Board of Probation and Parole, 912 A.2d 226, 235-36 (Pa. 2006).

2017“Case law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at ‘all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016) (citation omitted).

2017“Case law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at ‘all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016) (citation omitted).

2016It is important to note that this Court recently wrestled with the issue-preservation doctrine as it relates to challenges to mandatory minimum sentences in Commonwealth v. Foster, 609 Pa. 502 , 17 A.3d 332 (2011) (plurality).

2016It is important to note that this Court recently wrestled with the issue-preservation doctrine as it relates to challenges to mandatory minimum sentences in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality).

2024Commonwealth v. Thorne, 276 A.3d 1192 , 1196 (Pa. 2022) (citation omitted). -6- J-S03039-24 42 Pa.C.S. § 9760(1); see also Commonwealth v. Shull, 148 A.3d 820, 847 (Pa. Super. 2016) (“The principle underlying [Section 9760] is that a defendant should be given credit for time spent in custody prior to sentencing for a particular offense.”).

2020Accord Commonwealth v. Andrews, 564 Pa. 321, 314 , 768 A.2d 309, 314 (2001).1 I acknowledge that I have substantial reservations about attempting to parse between a conspiracy to commit murder and one to commit aggravated assault, relative 1Appellant would seem to be aware of the waiver concern, since he styled the question presented to encompass the claim that he has been subject to an illegal sentence, which, if true, would relieve him from the issue preservation requirement.

2020Accord Commonwealth v. Andrews, 564 Pa. 321, 314 , 768 A.2d 309, 314 (2001).1 I acknowledge that I have substantial reservations about attempting to parse between a conspiracy to commit murder and one to commit aggravated assault, relative 1Appellant would seem to be aware of the waiver concern, since he styled the question presented to encompass the claim that he has been subject to an illegal sentence, which, if true, would relieve him from the issue preservation requirement.

2020See Commonwealth v. King, ___ Pa. ___, 203 A.3d 973 (2019) (per curiam). to the single victim and episode, particularly where a representation made by the Commonwealth in the underlying prosecution which would seem to suggest an acknowledgement that there was only one criminal agreement.

2020However, while appellate issues generally must be preserved in the trial court at the earliest opportunity, “an exception to the issue- preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Monarch, 200 A.3d 51, 56 (Pa. 2019) (citation omitted).

2020Thus, an appellate issue related to the legality of a sentence is “nonwaivable.” Id.

2018See Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super. 2017) (“in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at all stages of adjudication up to and including the direct appeal”) (internal citations and quotations omitted); see also id. at 1168 n.3 (noting that “[a]n exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence”) (internal citations and quotations omitted); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived an

2018See Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super. 2017) (“in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at all stages of adjudication up to and including the direct appeal”) (internal citations and quotations omitted); see also id. at 1168 n.3 (noting that “[a]n exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence”) (internal citations and quotations omitted); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived an

2018The issue preservation requirement "advances the orderly and efficient use of our judicial resources" and "concepts of fairness and expense to the parties are implicated as well." F.C., 2 A.3d at 1211-1212 (citation omitted).

2017“Case law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at ‘all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (citation omitted); see also Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive application of a new constitutional rule, a defendant must have raised and preserved the issue in the court below.”), appeal denied, 121 A.3d 496 (Pa. 2015). “[A]n exception to the issue-preser

2016See id. at 11 (citing Commonwealth v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Market, 600 Pa. 515, 521-22 , 968 A.2d 1253, 1256-57 (2009)).

2016See id. at 11 (citing Commonwealth v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Market, 600 Pa. 515, 521-22 , 968 A.2d 1253, 1256-57 (2009)).

2016See id. at 11 (citing Commonwealth v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Market, 600 Pa. 515, 521-22 , 968 A.2d 1253, 1256-57 (2009)).

2016See id. at 11 (citing Commonwealth v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Market, 600 Pa. 515, 521-22 , 968 A.2d 1253, 1256-57 (2009)).

2016See id. at 11 (citing Commonwealth v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Market, 600 Pa. 515, 521-22 , 968 A.2d 1253, 1256-57 (2009)).

2016See id. at 11 (citing Commonwealth [J-24-2016] - 6 v. Colavita, 606 Pa. 1, 29-30 , 993 A.2d 874, 891-92 (2010), and Steiner v. Markel, 600 Pa. 515 , 521-22, 968 A.2d 1253 , 1256-57 (2009)).

2011See, e.g., In re Lokuta, 2009 Pa. LEXIS 2566 , * 1 (Pa. November 24, 2009) (per curiam ) ("Once a final order is entered [on remand appellant] may, if she opts to file an appeal, raise preserved claims of error.”); In re Melograne, 571 Pa. 490 , 812 A.2d 1164, 1167 (2002) (finding challenge to court’s authority was waived). .

2011See, e.g., In re Lokuta, 2009 Pa. LEXIS 2566 , *1 (Pa. November 24, 2009) ( per curiam ) ("Once a final order is entered [on remand appellant] may, if she opts to file an appeal, raise preserved claims of error."); In re Melograne, 571 Pa. 490 , 812 A.2d 1164, 1167 (2002) (finding challenge to court's authority was waived). [9] While Ash was a civil case, appellant advances no argument why this well-settled standard should not apply in judicial disciplinary proceedings. [10] Rule 31 provided: (A) Except as provided in paragraph (C), within 180 days of the Board's receipt of the Judicial Office

2010The difficulty with Hubbard is that most of supporting decisions referenced by the Hubbard Court expressed (or at least allowed for) necessary exceptions to the issue-preservation requirement, including “where peti tioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record.” Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435, 438 (1975).

2010The difficulty with Hubbard is that most of supporting decisions referenced by the Hubbard Court expressed (or at least allowed for) necessary exceptions to the issue-preservation requirement, including “where peti tioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record.” Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435, 438 (1975).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsidera tion of PCRA court’s dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonivealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsidera tion of PCRA court’s dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonivealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2009See, e.g., Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsideration of PCRA court's dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonwealth v. Jones, 590 Pa. 202 , 912 A.2d 268, 278 (2006) (same).

2006Appellee also argues that parole revocation hearings are “unique,” because they are not subject to all of the provisions of the Administrative Agency Law, citing Davis v. Pa. Bd. of Prob. and Parole, 85 Pa.Cmwlth. 278 , 481 A.2d 714, 717 (1984), and because the Board operates as “prosecutor, finder of fact and imposer of sanctions.” Finally, appellee submits that it is appropriate to raise the issue of the timebness of the hearing for the first time upon administrative appeal because the Board has all of the information necessary to resolve the issue in its possession.

2006Appellee also argues that parole revocation hearings are “unique,” because they are not subject to all of the provisions of the Administrative Agency Law, citing Davis v. Pa. Bd. of Prob. and Parole, 85 Pa.Cmwlth. 278 , 481 A.2d 714, 717 (1984), and because the Board operates as “prosecutor, finder of fact and imposer of sanctions.” Finally, appellee submits that it is appropriate to raise the issue of the timebness of the hearing for the first time upon administrative appeal because the Board has all of the information necessary to resolve the issue in its possession.