J-S22018-26 2026 PA Super 193
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS CHIACCHIO :
:
Appellant : No. 2534 EDA 2025
Appeal from the Judgment of Sentence Entered September 12, 2025
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007852-2013
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
CONCURRING OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 1, 2026
Appellant argues that the violation of probation (“VOP”) court erred by
rejecting on the merits a claim that the Commonwealth, in prior revocation
proceedings, failed to timely initiate those proceedings. I agree with the
Commonwealth that the VOP court erred by entertaining the merits of that
claim, and would hold that Appellant’s failure to raise those points at the
relevant times precluded him from pursuing that issue in the instant
proceedings. I would therefore affirm the VOP court’s order on that alternative
basis. Because the Majority does not explicitly address whether the VOP court
erred in ruling on the merits, I concur in the result, affirming the judgment of
sentence.1
1 I agree with the Majority’s conclusion that Appellant’s sentence of total confinement is legal. See Maj. Op. at 9.
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Briefly stated, Appellant’s argument implicates two distinct sentences.
The first sentence stemmed from a July 23, 2021 motion to revoke Appellant’s
probation. Ultimately, the VOP court revoked Appellant’s probation and
resentenced him on April 29, 2022 (“2022 VOP Sentence”) to a two-year
period of probation. Appellant did not file a direct appeal from that sentence
or challenge the revocation proceedings under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546.
While serving the 2022 VOP Sentence, Appellant absconded and the VOP
court issued a warrant for his arrest on January 16, 2024. Following his
apprehension, the VOP court scheduled a revocation hearing. In the interim,
Appellant filed a motion to dismiss the probation violations, arguing that the
Commonwealth’s motion filed in July of 2021, which led to the 2022 VOP
Sentence, was untimely because his probationary period had expired on June
11, 2021. Provided the violations occurred during the probationary period,
courts “look to the particular circumstances of a case to determine the
propriety of a post-probation allegation of violation.” Commonwealth v.
Smith, 860 A.2d 142, 143 (Pa. Super. 2004). The VOP court held a hearing
(“Smith hearing”) on that issue and denied relief on the merits. See VOP
Court Opinion (VCO), 11/17/25, at 5-6. The VOP court revoked probation and
imposed a second VOP sentence on September 12, 2025 (“2025 VOP
Sentence”).
Appellant has filed a direct appeal from the 2025 VOP Sentence, and his
brief argues that the VOP court erred in rejecting the Smith claim. See
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Appellant’s Brief at 13-17. Then, anticipating success on that claim, Appellant
maintains that the current 2025 VOP Sentence is illegal. Id. at 18 (“As
[Appellant’s] probationary period expired on June 11, 2021, the sentence
imposed on April 29, 2022, was an illegal sentence. Therefore, the sentence
imposed on September 12, 2025, is also illegal and must be vacated.”)
(citation omitted).
The Majority holds that Appellant’s “allegation does not implicate the
legality of the 2022 VOP Sentence, but instead challenges the trial court’s
discretion in applying the Smith factors.” Maj. Op. at 7-8 (citation omitted).
The Majority thus concludes that Appellant’s “2022 VOP Sentence was not an
illegal sentence.” Id. at 8.
I disagree with the Majority’s approach. Appellant assails the legality of
his 2025 VOP Sentence by reference to what occurred during the prior
revocation proceedings. If Appellant is correct that the 2022 VOP Sentence is
illegal under Smith, then the 2025 VOP Sentence is indeed illegal by
extension. However, I would hold that Appellant cannot assail the legality of
the 2022 VOP Sentence in the manner he develops.
To explain why, clarification of the term “legality” is necessary. I
perceive Appellant to use the term in the broad sense of “the 2022 VOP
Sentence was illegal because it contradicts the ruling in Smith.” See
Appellant’s Brief at 18 (“[N]one of the Smith exceptions, nor the lower court’s
policy rationale, justify the Commonwealth’s delay in initiating revocation
proceedings in this case.”). The Majority, in contrast, examines “legality”
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under the “legality of sentence” framework, which operates to relieve parties
of the normal requirement that issues must be raised and preserved
throughout the entire process. See Commonwealth v. Thorne, 276 A.3d
1192, 1196 (Pa. 2022) (“A challenge that implicates the legality of an
appellant’s sentence . . . is an exception to this issue preservation
requirement.”).
I submit the Majority’s approach misapprehends Appellant’s use of
“legality.” I do not interpret Appellant to invoke the concept to escape waiver.
From his perspective, Appellant believes that he preserved his Smith claim
by raising the issue prior to imposition of the 2025 VOP Sentence. Appellant
apparently presumes that the issue has been preserved for review because
the VOP court issued a ruling on the merits of the Smith claim. In other
words, Appellant argues “legality” in the sense that we must determine
whether the VOP court’s Smith ruling is correct as a matter of law, and then
decide the legality of the 2025 VOP Sentence based on that ruling. He does
not, as I interpret his brief, invoke “legality” to avoid waiver.
The critical question is therefore whether the Commonwealth is correct
that the VOP court erred by entertaining the Smith claim in the 2025 VOP
Sentence proceedings. See Commonwealth’s Brief at 11 (“Accordingly, to the
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extent the resentencing court erred it was in considering the merits of
[Appellant]’s motion at all.”).2
It is not clear if the Majority agrees with the Commonwealth. The
Majority states that Appellant’s arguments on appeal challenge the VOP
court’s “discretion in applying the Smith factors.” Maj. Op. at 8. Continuing,
the Majority states that Appellant’s “assertion is that the [VOP] court should
have considered the particular facts and determined that the filing was
unreasonably untimely. We conclude that this allegation does not implicate
the legality of the 2022 VOP Sentence, but instead challenges the trial court’s
discretion in applying the Smith factors.” Id. at 7-8. This suggests the VOP
court did not err in holding the Smith hearing.
On the other hand, the Majority concludes that Appellant’s “attempt to
challenge the timeliness of the 2022 probation revocation, as well as the 2022
2 The Commonwealth argues that Appellant’s motion to dismiss under Smith
should have been treated as a PCRA petition challenging the validity of his 2022 VOP Sentence and views it as a jurisdictional issue. Commonwealth’s Brief at 15 (“[Appellant’s] instant challenge to the 2022 probation procedure should have been raised either on direct appeal or in a timely PCRA petition. This challenge is an untimely PCRA petition over which neither this Court nor the re-sentencing court have jurisdiction to entertain.”).
I do not agree. Among other reasons, the motion did not technically seek relief from the 2022 VOP Sentence. He was, of course, indirectly challenging the 2022 VOP Sentence, but the motion on its face addressed ongoing revocation proceedings. The PCRA definitionally applies only to final sentences, and Appellant sought to prevent the imposition of a new sentence. Thus, while my “finality” analysis is closely related to the Commonwealth’s arguments, I do not agree that the VOP court was required to treat the motion to dismiss as an actual request for relief under the PCRA.
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VOP Sentence, in the present revocation proceedings, was untimely.” Id. at
8 (citing Commonwealth v. Weir, 239 A.3d 25, 34 (Pa. 2020)). The cited
portion of Weir sets forth the general proposition that “[w]here a claim
concerns the sentencing court’s exercise of discretion in fashioning a sentence,
the defendant must preserve and present the claim at trial by way of a
contemporaneous objection and/or a post-trial motion and on appeal through
the process.” Weir, 239 A.3d at 34. Therefore, the Majority appears to imply
that a Smith claim involves the discretionary aspects of sentence 3 and that
Appellant failed to properly preserve that “discretionary” claim by failing to
raise it in the 2021 proceedings leading to the 2022 VOP Sentence. This
suggests that the VOP court did err in holding the hearing.
In any event, I would simply explicitly state that the VOP court erred by
allowing Appellant to develop his Smith claim because he failed to present it
at the appropriate time. Therefore, I agree with the Majority that “timeliness”
is a pertinent consideration, but I conclude that we must examine the timing
of Appellant’s motion through the lens of “finality” as opposed to waiver.
On that point, I would hold that the “Smith issue” was final as a matter
of law and Appellant thus forfeited his ability to challenge that issue. I fully
agree with the Majority that Appellant “should have raised any objection
3 If so, I cannot agree, as I share the Commonwealth’s view that a “fact-based
challenge to the procedure employed does not implicate the legality of sentence doctrine.” Commonwealth’s Brief at 13. Similarly, a Smith claim does not implicate the “discretionary aspects” of the revocation sentence.
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contemporaneously with the 2022 probation revocation and imposition of
sentence.” Maj. Op. at 8. His failure to do so rendered those issues final. 4
Finally, I observe that to the extent the legality of the 2025 VOP
Sentence is at issue in the sense of relieving Appellant of issue preservation
obligations, this concept does not extend back to the proceedings in 2021 and
2022. Addressing whether a sentence is “legal” for those purposes does not
extend to examining all possible sources of law. A clear example of this
distinction is Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),
which pertained to application of Alleyne v. United States, 570 U.S. 99
(2013). The Alleyne Court invalidated certain mandatory minimum statutes,
including several that were applied to the appellant in Washington. In timely
collateral proceedings, the appellant argued that he was entitled to relief
because his sentence was now illegal following Alleyne. The Washington
Court explained that a “new rule of law does not automatically render final,
pre-existing sentences illegal.” Id. at 814. The Court went on to hold that
the Alleyne decision would not be applied retroactively. Thus, the sentence,
while illegal under prevailing law, would not be disturbed due to finality
concerns.
4 According to the VCO, “Appellant appeared pro se” on April 29, 2022, when
he was sentenced for the violation. VCO at 2. It is not clear whether counsel was appointed during the revocation proceedings or whether Appellant waived his right to counsel. In any event, Appellant could have, at minimum, filed a timely PCRA petition.
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The issue involved in this case is, of course, procedurally different in
that Appellant is on direct appeal from the 2025 VOP Sentence and does not
seek the application of any “new” law. But that distinction strengthens the
case for precluding Appellant from arguing the Smith issue at this juncture.
Appellant attempts to rely on “old” law, not new, and Appellant had the
opportunity to litigate whether the Commonwealth’s motion was timely under
Smith.
Accordingly, I would hold that whether the Commonwealth timely filed
the 2021 motion to revoke probation is not reviewable at this late stage of the
litigation. Therefore, I respectfully concur in the result.
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