                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                    November 23, 2015
                                                                                RORY L. PERRY II, CLERK
vs) No. 15-0022 (Wood County 14-F-2)                                          SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Jason Alfstad,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Jason Alfstad, by counsel Robin S. Bonovitch, appeals the Circuit Court of
Wood County’s December 11, 2014, order sentencing him to a term of incarceration of one to
five years for one count of third-degree sexual assault, in violation of West Virginia Code § 61­
8B-5. The State of West Virginia, by counsel Laura Young, filed a response in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court violated his federal and
state constitutional rights to freedom from cruel and unusual punishment and due process by
sentencing him to a prison term disproportionate to the character and degree of the underlying
crime.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In January of 2014, the Wood County grand jury indicted petitioner on one count of first-
degree sexual assault and one count of third-degree sexual assault for having sexual intercourse
with a child under the age of sixteen years. The State alleged that petitioner provided alcohol to a
twelve-year-old girl whom he then sexually assaulted.

       In August of 2014, petitioner agreed to enter an Alford plea1 to one count of third-degree
sexual assault in exchange for the State’s recommendation of home incarceration and dismissal

       1
         An Alford plea, from the decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970), allows a defendant to enter a guilty plea without admitting guilt. See
Syl. Pt. 1, Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987) (stating that “[a]n accused
may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime, if he intelligently concludes that
his interests require a guilty plea and the record supports the conclusion that a jury could convict
him.”).
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of the remaining count in the indictment.2 Pursuant to the agreement, the recommendation for
home incarceration was not binding upon the Court. Following his plea, petitioner was
psychologically evaluated. Among other findings and conclusions, the psychological report
indicated that he had no history of violence; his family could provide him with support; and he
had no history of violating the terms of supervision.

        The circuit court held a sentencing hearing in December of 2014. Petitioner argued that
he should receive home incarceration, citing his psychological evaluation and the State’s
recommendation for that sentence. However, the circuit court ultimately sentenced petitioner to
prison for one to five years due to the nature of the offense. The circuit court also imposed a term
of supervised release of twenty-five years and court costs. This appeal followed.

          On appeal, petitioner’s sole assignment of error is that the circuit court violated his
constitutional rights to freedom from cruel and unusual punishment and due process because his
prison term of one to five years is disproportionate to the underlying crime, pursuant to the
Eighth Amendment to the United States Constitution3 and Article III, Section 5 of the West
Virginia Constitution.4 See Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983)
(“Punishment may be constitutionally impermissible, although not cruel or unusual in its method,
if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity, thereby violating West Virginia Constitution,
Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree
of an offense.”); Syl. Pt. 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980) (“Article III,
Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment
counterpart to the Eighth Amendment of the United States Constitution, has an express statement
of the proportionality principle: ‘Penalties shall be proportioned to the character and degree of
the offence.’”).

        This Court generally “reviews sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in
part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). However, in addressing our limitations on appellate review of
statutory criminal sentences, we have stated that “[s]entences imposed under statutes providing

       2
           The parties failed to include the transcript of the plea hearing in the record on appeal.
       3
         The federal prohibition of cruel and unusual punishment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. Amend. VIII.
       4
       Article III, Section 5 of the West Virginia Constitution forbids the imposition of cruel
and unusual punishment and disproportionate penalties:

       Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
       unusual punishment inflicted. Penalties shall be proportioned to the character and
       degree of the offence. No person shall be transported out of, or forced to leave the
       State for any offence committed within the same . . . .
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no upper limits may be contested based upon allegations of violation of the proportionality
principles contained in Article III, Section 5 of the West Virginia Constitution.” State v. Tyler,
211 W.Va. 246, 250, 565 S.E.2d 368, 372 (2002) (citing State v. Rogers, 167 W.Va. 358, 360,
280 S.E.2d 82, 84 (1981)). Importantly, the statute under which petitioner was sentenced for
third-degree sexual assault, West Virginia Code § 61-8B-5, provides for an upper limit of
incarceration of five years. As such, petitioner’s sentence for this crime is not reviewable on
direct appeal. See also Syl. Pt. 10, State v. Payne, 225 W .Va. 602, 694 S.E.2d 935 (2010)
(stating that “‘[s]entences imposed by the trial court, if within statutory limits and if not based on
some [im]permissible factor, are not subject to appellate review.’ Syl. Pt. 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982)).”).

       For the foregoing reasons, the circuit court’s December 11, 2014, order, is hereby
affirmed.

                                                                                           Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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