Com. v. Chiacchio, T.
CourtSuperior Court of Pennsylvania
Date FiledSeptember 1, 2026
Docket2534 EDA 2025
JudgeLane
StatusPublished
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Full Opinion
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.
OPINION BY LANE, J.: FILED SEPTEMBER 1, 2026
Thomas Chiacchio (“Chiacchio”) appeals from the judgment of sentence
imposed following the revocation of his probation. We hold that a claim, that
the probation department filed an unreasonably untimely petition to revoke
probation, after the probation term had already ended, does not implicate the
legality of sentencing and is thus waivable. We affirm.
In January 2014, Chiacchio pleaded guilty to receiving stolen property
and received a sentence of thirty-six months’ probation. The trial court has
since found Chiacchio in violation of probation or parole several times.
For ease of review, at this juncture we summarize Chiacchio’s summary
of the relevant prior procedural history. On June 11, 2019: the trial court
found Chiacchio in violation of his probation, revoked the probation, and
terminated parole. He received a “split sentence [of] two months and a day[,]
which he served,” and a concurrent two years’ probation. N.T., 8/29/25, at
8. This probation term purportedly expired on June 11, 2021. The probation
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department, however, filed a petition to revoke this probation on July 23,
2021, six weeks thereafter. On April 29, 2022, the trial court revoked this
probation and imposed a new sentence of two years’ probation (the “2022
VOP Sentence”).
In January 2024, the probation department filed the underlying
“Affidavit on Absconding Probationer/Parole,” averring that Chiacchio violated
his 2022 probation by: failing to pay restitution and comply with drug
treatment; continuing to use illegal drugs; failing to contact his probation
officer; and incurring new drug-related charges. In response, Chiacchio filed
a counseled motion to dismiss the allegations of probation violations, arguing
that the 2022 VOP Sentence was illegal because the petition to revoke
probation was untimely, filed after the prior probation had ended.
The trial court conducted a hearing on August 29, 2025, first hearing
argument on Chiacchio’s motion to dismiss. Chiacchio’s probation officer,
Melissa Wybranski (“PO Wybranski”), addressed the events leading to the
2022 revocation of probation. While that probation was still in effect, in May
2021, Chiacchio’s then-probation officer notified him “verbally . . . that a
violation hearing would be filed.” N.T., 8/29/25, at 12. On May 17, 2021,
Chiacchio suffered a drug overdose and entered treatment from May 26 to
June 23, 2021. See id. at 13, 15. In the meantime, his probationary term
expired on June 11, 2021. The probation department did not immediately file
a petition to revoke because it was focusing on “get[ting] him into inpatient
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treatment,” and when Chiacchio left inpatient treatment on June 23, 2021,
“he started using again.” Id. at 14-15. The department then filed the petition
to revoke probation on July 23, 2021, citing Chiacchio’s misconduct during the
probationary term.
At the hearing, Chiacchio acknowledged that under Commonwealth v.
Smith, 860 A.2d 142 (Pa. Super. 2004), the probation department has “a
reasonable period of time to file a notice after [a] probation [period has]
expired.” Id. at 11, 16. Chiacchio averred that in this case, however, the
Commonwealth did not establish any of the Smith factors for permitting a
late notice, the probation department “should have issued the violation”
during the probationary term, and the delay was not reasonable. Id. at 11,
16.
The trial court disagreed, concluding that “in light of all the
circumstances,” the probation department “acted reasonably” in 2021. Id. at
25. The court further reasoned that Chiacchio did not suffer prejudice from
the timing of the late filing. Accordingly, the court denied Chiacchio’s motion
to dismiss the instant petition to revoke probation.
The matter then proceeded immediately to a Gagnon II1
determination. The trial court found Chiacchio in violation of probation,
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1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). See also Commonwealth
v. Allshouse, 969 A.2d 1236, 1240 (Pa. Super. 2009) (explaining that: (1)
“[w]hen a parolee or probationer is detained pending a revocation hearing,
(Footnote Continued Next Page)
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revoked his probation, and imposed a new sentence of fifteen to thirty-six
months’ imprisonment.
Chiacchio filed a timely post-sentence motion. The trial court granted
reconsideration and conducted a hearing on September 12, 2025. The court
vacated Chiacchio’s sentence and imposed an amended sentence of twelve to
twenty-four months’ imprisonment. Chiacchio timely filed a timely notice of
appeal. He and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review: “Where the
Commonwealth initiated revocation proceedings after . . . Chiacchio’s
probationary term expired, resulting in an illegal sentence, did the court err
in revoking that illegal probationary term and resentencing him to 12 to 24
months of incarceration?” Chiacchio’s Brief at 4.
Chiacchio contends that the trial court erred in revoking his probation
and imposing a new sentence, because the prior 2022 VOP Sentence was “an
illegal sentence.” Id. at 11. Chiacchio maintains that his prior probationary
term concluded on June 11, 2021, but the probation department did not file
an affidavit for revocation until July 2021, more than a month thereafter.
Chiacchio contends that the Commonwealth did not establish any of the
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due process requires a determination at a pre-revocation hearing, a Gagnon
I hearing, that probable cause exists to believe that a violation has been
committed;” and (2) “[w]here a finding of probable cause is made, a second,
more comprehensive hearing, a Gagnon II hearing, is required before a final
revocation decision can be made”).
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factors under Smith, 860 A.2d 142, for permitting a petition to revoke after
the probationary term has concluded. Chiacchio thus concludes that because
the 2022 VOP Sentence was illegal, the trial court could not have found him
in violation of that probation, and the instant sentence is likewise illegal.
The trial court considered the Smith factors and determined that the
probation department’s delay in filing the prior petition to revoke was
reasonable, due to the department’s focus on “Chiacchio’s health following his
overdose and on ensuring he received the treatment he so clearly and
desperately needed.” Trial Court Opinion, 11/17/25, at 6. The court also
considered that a contrary finding, that the 2021 revocation filing was
unreasonably untimely, “would encourage probation officers to neglect the
health needs of their clients merely to comply with court-imposed deadlines.”
Id.
We first consider the premise of Chiacchio’s claim — that the 2022 VOP
Sentence was an “illegal sentence” because the probation department filed
the revocation petition after his probationary term had already ended.
Chiacchio’s Brief at 18. Chiacchio cites no legal support for this contention.
The Commonwealth denies that Chiacchio’s issue implicates the legality
of sentencing, as he did not claim the 2022 VOP Sentence “had no statutory
authority at the time it [was] imposed.” Commonwealth’s Brief at 12.
Instead, the Commonwealth reasons, Chiacchio raised a “fact-based
challenge” to “the procedure employed to initiate the revocation proceeding
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and whether the facts at issue at the time of that proceeding justified the
timing of the praecipe to revoke probation.” Id. at 12-13. The trial court did
not address this issue, but instead, as stated above, reviewed the timeliness
of the filing under the Smith factors.
“The question of whether a challenge to a sentence implicates its
discretionary aspects or its legality presents a pure question of law. As such,
our scope of review is plenary, and our standard of review is de novo.”
Commonwealth v. Prinkey, 277 A.3d 554, 560 (Pa. 2022). The
Pennsylvania Supreme Court has “defined an illegal sentence as one that was
imposed without authority.” Id. at 561 (citing Commonwealth v. Barnes,
151 A.3d 121 (Pa. 2016), “our seminal decision on the distinction between” a
challenge to legality of a sentence or the discretionary aspects of a sentence).
The Court has explained:
[T]he inquiry is whether, assuming the appellant’s claim prevails,
the result would be that the trial court lacked authority to impose
the sentence at issue. If so, then the appellant’s challenge
implicates the legality of his sentence.[] Conversely, if the
challenge is not to the existence of certain authority but to the
exercise of that authority, then the challenge goes to the
discretionary aspects of a sentence, not to its legality. []
Id. at 563-64 (footnotes omitted).
Different rules of issue preservation apply to the two categories of
sentencing challenges:
Where 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
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process provided by 42 Pa.C.S. § 9781(b)[] and Pa.R.A.P.
2119(f).[]
Where a claim concerns the sentencing court’s authority to impose
a sentence, it is reviewable as of right on direct appeal, without
regard to preservation of the claim. . . .
Commonwealth v. Weir, 239 A.3d 25, 34 (Pa. 2020) (some citations and
footnotes omitted).
In Smith, this Court held:
[T]he Commonwealth may, under certain circumstances, file
allegations of a violation of probation even after the probationary
term has expired.
The circumstances where this is allowable are limited to such
instances where either the Commonwealth cannot ascertain that
it was the probationer who committed another offense; the
Commonwealth cannot show that a violation has actually occurred
. . . ; or the violation has occurred so late in the probationary term
that the Commonwealth cannot actually file the proper paperwork
in time.[] ‘‘. . .
Smith, 860 A.2d at 145 (paragraph break added and footnote omitted).
Smith plainly held that the Commonwealth may file an allegation of a
probation violation after the probationary term has expired. See id. Smith
set forth criteria for a court to consider in determining whether to allow such
a filing. Chiacchio does not claim that the trial court, in 2022, lacked authority
to consider the probation department’s untimely revocation filing, but rather
concedes that the court had such authority. Instead, Chiacchio’s assertion is
that the trial 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
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challenges the trial court’s discretion in applying the Smith factors. See
Prinkey, 277 A.3d at 560, 563-64. Accordingly, we determine Chiacchio’s
2022 VOP Sentence was not an illegal sentence.
Consequently, we further determine that Chiacchio’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. See
Weir, 239 A.3d 34. Instead, Chiacchio should have raised any objection
contemporaneously with the 2022 probation revocation and imposition of
sentence. See id. We thus conclude no relief is due on Chiacchio’s issue.
At this juncture, we sua sponte consider the legality of the present
amended sentence of twelve to twenty-four months’ imprisonment under this
Court’s recent en banc decision in Commonwealth v. Seals, 353 A.3d 747
(Pa. Super. 2026) (en banc). See Commonwealth v. Simmons, 262 A.3d
512, 515 n.3 (Pa. Super. 2021) (en banc) (stating that “challenges to an illegal
sentence can never be waived and may be raised sua sponte by this Court”).
The Seals decision held “that a claim that a court failed to follow the
limitations imposed by section 9771(c) [of the Sentencing Code 2] is a
challenge to the legality of a sentence and thus not subject to issue
preservation requirements.” Seals, 353 A.3d at 752. Section 9771(c), in
turn, provides in pertinent part:
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2 See 42 Pa.C.S.A. §§ 9701-9799.95.
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(c) Limitation on sentence of total confinement. There is a
presumption against total confinement for technical violations of
probation. The following shall apply:
(1) The court may impose a sentence of total
confinement upon revocation only if:
(i) the defendant has been convicted of another
crime[.]
42 Pa.C.S.A. § 9771(c)(1)(i).
At the underlying revocation hearing, the Commonwealth averred that
in addition to Chiacchio’s failure to comply with drug treatment and report to
the probation department, he incurred a new charge of possession of a
controlled substance, and had already received a sentence of six months’
probation. See N.T., 8/29/25, at 3, 5-6. As Chiacchio “has been convicted of
another crime,” the court had authority to impose the underlying sentence of
total confinement. See 42 Pa.C.S.A. § 9771(c)(1)(i).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
President Judge Emeritus Panella joins.
President Judge Emeritus Bender files a concurring opinion.
Date: 9/1/2026
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