J-A24002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JAMES WALLACE :
:
Appellant : No. 904 WDA 2019
Appeal from the Judgment of Sentence Entered April 22, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000845-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2020
Appellant, Terry James Wallace, appeals from the aggregate judgment
of sentence of 20 to 41 years’ incarceration, imposed after he pled guilty to
one count of corruption of minors, 730 counts of sexual intercourse with
animals, and 730 counts of cruelty to animals. Appellant solely challenges the
discretionary aspects of his sentence. We affirm.
The trial court set forth the following summary of the facts and
procedural history of this case:
The case at bar involves sexual intercourse with horses,
goats, and dogs by … [Appellant,] and the exposing of his minor
child (sixteen years old) to these deviate sex acts. No trial was
held, but [Appellant entered] a guilty plea and accepted all facts
in the affidavit of probable cause[,] as set forth below.
[Appellant], Marc Measnikoff (“Measnikoff”), and Matthew
Brubaker (“Brubaker”) all owned a plot of land in Munson,
Pennsylvania. [Appellant] and his child lived in a camper on one
side of the property, and Measnikoff and Brubaker shared a
camper on the other side of the property. [Appellant] owned one
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horse. Measnikoff owned nine horses, seven of which were female
and two of which were male. Brubaker owned five horses, four of
which were female, one of which was male. There were also
goats, at least one cow, and dogs on the property. [Appellant]
had sexual intercourse with dogs, goats, a cow, and each of the
female horses. [Appellant] had sexual intercourse with animals
daily. [Appellant] would often videotape these sexual encounters.
This case came to the attention of police after an interview
with [Appellant’s] child, who reported that for the past four [to]
five years[,] he ha[d] been exposed to all three men having sexual
intercourse with animals on a daily basis. The child stated that he
first discovered this conduct when he found a video of his father,
[Appellant], having sexual intercourse with a goat on the[ir]
shared i[P]ad. The child reported that [Appellant] would receive
a message from Measnikoff and/or Brubaker and go to their
camper. The child would then be expected to locate a particular
horse, walk it into a V shaped chute, and wait on the other side of
the wall until whoever was abusing the horse finished having
sexual intercourse with it. The child also noted that the living
conditions were deplorable, as he had to regularly collect rain
water to take a shower, had a limited supply of canned food, no
electricity, and no bathrooms were located on the property.
On January 25, 2019, [Appellant] entered an open plea of
guilt, providing the sentencing court full discretion in determining
sentencing, to one count of corruption of minors (misdemeanor of
the first degree), [730] counts of sexual intercourse with animals
(misdemeanor of the second degree), and [730] counts of cruelty
to animals (summary offense). At the … sentencing hearing, it
was determined that [Appellant] had a prior record score of zero.
The standard range for corruption of minors [was] restorative
sanctions [to] three months[’ incarceration]. This court sentenced
[Appellant] in the aggravated range to six months[’ to] two years[’
incarceration] for corruption of minors. The standard range for
sexual intercourse with animals [was] restorative sanctions. This
court sentenced [Appellant] in the aggravated range to three …
[to] six months[’ imprisonment] on the first [78] counts of sexual
intercourse with … animal[s,] to be served consecutively. Cruelty
to animals is a summary offense. [Appellant] was sentenced to
two years[’] probation for cruelty to animals[,] to be served
concurrent to the above[-]mentioned sentence. Additionally, this
court determined [Appellant] shall have no unsupervised contact
with anyone under the age of eighteen years old, and shall not
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consume alcohol.[1] In making its determination, the court noted
… the severity of the acts, the number of acts committed by
[Appellant], the fact that [Appellant] videoed the acts, and the
harm that resulted [to] the child from viewing these videos at all,
but especially at such a young age.
On May 21, 2019, [Appellant’s] motion for reconsideration
of sentence was heard. On the sexual intercourse with animals
sentence, defense counsel argued that by using the amount of
counts as a reason for sentencing in the aggravated range, this
court [had] double-aggravat[ed] the charges. Defense counsel
further argued that the majority of the sentence imposed related
to the sexual intercourse with animals charge[,] rather than the
corruption of minors charge, which he deemed to be backwards.
The Commonwealth responded that each count constitutes a
specific instance of criminal conduct, and that [Appellant] should
be sentenced accordingly. The court took this under advisement,
[and] ultimately denied [Appellant’s] request [for modification of
his sentence].
Trial Court Opinion (TCO), 8/19/19, at 1-3 (unnecessary capitalization
omitted).
Appellant filed a timely notice of appeal, and he also complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on August
19, 2019. Herein, Appellant states one issue for our review: “Whether the
[s]entencing [c]ourt abused its discretion by imposing a sentence that was
excessive, clearly unreasonable, and disproportionate to the severity of the
offenses committed?” Appellant’s Brief at 9.
Appellant’s issue implicates the discretionary aspects of his sentence.
____________________________________________
1 Measnikoff and Brubaker also pled guilty to the same offenses as Appellant,
and were both sentenced to identical, aggregate terms of 20 to 41 years’
incarceration. Measnikoff’s appeal is docketed at 1405 WDA 2019, and
Brubaker’s appeal is docketed at 1287 WDA 2019.
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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant preserved his sentencing issue in his post-
sentence motion, he filed a timely appeal, and he has included a Rule 2119(f)
statement in his appellate brief. Therein, he contends that the court provided
inadequate reasons for sentencing him in the aggravated range for all of his
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convictions, and that “[t]he sentencing scheme places a disproportionate
emphasis on the offenses against the animals when the factual basis for the
offenses against the animals and the offense against the [minor victim] are
the same.” Appellant’s Brief at 13-14. Additionally, Appellant avers that the
court failed to account for his rehabilitative needs, the protection of the public,
and his lack of a prior record. Id. at 14.
Notably, Appellant does not cite any legal authority to demonstrate that
any of his claims presents a substantial question for our review, and he also
fails to explain how his sentence is inconsistent with the Sentencing Code or
the fundamental norms underlying the sentencing process. Accordingly, he
has not demonstrated that his issues constitute substantial questions
warranting our discretionary review.
Notwithstanding, we would conclude that Appellant is not entitled to
relief. We are mindful that:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
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In the two-page Argument section of Appellant’s brief, he provides the
following discussion to support his claim that the sentencing court abused its
discretion:
The sentence in question meets the vacate test set forth in 42
Pa.C.S.[ §] 9781 for the following reasons:
1. The [c]ourt fails to provide any factual basis for using an
aggravated range.
2. The [c]ourt fails to provide any factual basis for using a
consecutive per count approach.
3. The [c]ourt fails to provide any factual basis as to the
rehabilitation needs of [Appellant].
4. The [c]ourt fails to provide any factual basis as to the
seriousness of the offenses [that] exist[s] outside of the statutory
elements of the offenses.
5. The [c]ourt fails to provide any factual basis as to any special
need[] to protect the public.
6. The [c]ourt places a disproportionate emphasis on the offenses
concerning the animals.
It is this last factor that presents the most glaring abuse of
discretion and abject lack of reasonableness. Of the 20 … to 41
year[] sentence, only 2.5% (6 months to 2 years) of that
minimum sentence is attributable to the offense against the
minor. The number of counts is misleading. The exposures and
the acts are equal. The corruption in question is based upon
exposing the minor to the sexual offenses against the animals. At
a minimum, the sentence should be apportioned equally. This is
especially true since the [s]entencing [c]ourt’s opinion is
dedicated to the concern it has for the minor. The sentence should
reflect the paramount concerns of the [c]ourt.
Appellant’s Brief at 15-16.
Appellant’s cursory argument — unsupported by citations to the record
or any legal authority — does not establish an abuse of discretion by the
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sentencing court. In its Rule 1925(a) opinion, the trial court provided a
lengthy discussion of its rationale in imposing aggravated-range, consecutive
terms of incarceration. See TCO at 4-8. In particular, the court explained
that aggravated-range sentences were warranted due to the nature, severity,
and “sheer amount of times this conduct occurred[,]” as well as the fact that
Appellant involved his minor son in the commission of his crimes. Id. at 7.
The court also stressed that “[t]he nature and severity of these crimes
shocked the conscience of [the c]ourt[,]” and “aggravated sentences were
appropriate to protect the public[,]” given that Appellant “subjected his child
to … videos [of his crimes] and recruited his child’s involvement in helping
facilitate the sexual encounters with the animals.” Id. at 6. The court found
that Appellant’s prior record score of zero “was not enough to persuade [it] to
grant a lesser sentence[,]” as that factor “was outweighed by the aggravating
circumstances.” Id. at 7.
In regard to Appellant’s rehabilitative needs, the court observed that
“[t]here was minimal testimony provided to persuade [the c]ourt that
[Appellant] would be able to rehabilitate himself.” Id. at 5. The court found
Appellant’s apology for his actions insincere, and it reasoned that the nature
of his criminal conduct, which spanned several years and involved his minor
son, indicated Appellant would need “a significant amount of time incarcerated
in order to be rehabilitated.” Id. at 6. Finally, the court rejected Appellant’s
position that it abused its sentencing discretion by imposing a lengthier
sentence for his crimes involving animals than his corruption of minors
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offense. The court explained that “the incredible amount of counts associated
with the [s]exual [i]ntercourse with [a]nimals charge necessitated a longer
sentence than the one count for [c]orruption of [m]inors.” Id. at 8.
The court’s detailed discussion of its sentencing decision demonstrates
that it did not abuse its discretion in fashioning Appellant’s lengthy term of
incarceration. We would discern nothing unreasonable in the court’s decision
to impose aggravated-range, consecutive sentences under the facts and
circumstances of this case. Accordingly, even had Appellant convinced us that
his claims constitute substantial questions for our review, we would conclude
that no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
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