Com. v. Chiacchio, T.

Sep 1, 2026
2534 EDA 2025

CONCURRING OPINION BY BENDER, P.J.E.:

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

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 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” 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 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 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 sentence3 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 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.

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.

Notes

1
I agree with the Majority‘s conclusion that Appellant‘s sentence of total confinement is legal. See Maj. Op. at 9.
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.
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.
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.