Hard Time DUIs
Life Sentence Case AppealedBy FRED CONNORS Staff Writer
Article Photos
WHEELING - Wheeling attorney Martin Sheehan believes David Appleby got a bad deal after he pleaded guilty to drunken driving charges in 2001.
Sheehan said Appleby was told he could get a maximum of two to six years in prison before he pleaded guilty on Nov. 27, 2001, to third offense driving under the influence of alcohol and third offense driving while suspended for third offense DUI.
In the end, he got a life sentence.
On Tuesday, Sheehan will take the case before the Fourth Circuit U.S. Court of Appeals in Richmond, Va.
Appleby, now 50, could not post bond and has been in jail since Sept. 20, 2001, when an Ohio County grand jury indicted him on the two drunken driving related offenses. He pleaded guilty on Nov. 27, 2001.
Sheehan said that during the plea hearing, Circuit Judge Arthur Recht explained to Appleby that the maximum sentence of incarceration he could receive on each count was an indeterminate sentence of not less than one and not more than three years.
"The trial court further explained that the sentences could be imposed consecutively and explained that if imposed consecutively, Mr. Appleby could receive an indeterminate sentence of not less than two nor more than six years," Sheehan said. "The court did not discuss any other enhanced sentencing possibility."
Sheehan contends that Appleby was not told on the record that he could face life in prison under West Virginia's three strikes law.
"He thinks he is entitled to rely on what he was told during the plea discussions -a sentence of one to three years on each count, or a consecutive sentence of two to six years," Sheehan said. "Had he served the maximum based on that advice, he would have been free at the absolute latest on Sept. 21, 2007.
"Interestingly, after entering his guilty plea, Mr. Appleby made another long-term decision. He chose to marry. The ceremony followed the plea hearing and was officiated at by the trial court judge (Recht)."
Shortly after the plea hearing, Ohio County Prosecutor Scott Smith filed a recidivist proceeding against Appleby which called for life in prison under the three strikes law.
Smith said Appleby's attorney should have informed him of a possible recidivist action.
"The state followed the law in terms of how to proceed in recidivist proceedings," he said. "Once the defendant was convicted of the underlying offenses, the state filed the recidivist information seeking to have the defendant sentenced to live as a three-time convicted felon. He had counsel when he entered his plea.
"We provide counsel to people so they can be advised as to the ramifications of their guilty pleas and, usually, the attorney is aware of the person's prior criminal history. An attorney who is aware of the fact that his client has several prior felony convictions would normally advise the defendant as to whether or not he could be subjected to a recidivist proceeding."
Smith said the state contends that the prior felony convictions were appropriate qualifying convictions to trigger a life recidivist sentence and, in addition to having a recidivist information filed, Appleby was afforded a jury trial in the recidivist proceeding.
"I contend that a DUI third offense is a violent offense in that there is a significant danger to the public," he said. "Mr. Appleby had several misdemeanor drunken driving convictions and several felony drunken driving convictions. The West Virginia Supreme Court of Appeals has already heard and considered all of these issues and ruled in the state's favor."
Sheehan said he looks at the case through Appleby's eyes.
"What bothers me about this case is that Dave was told the maximum sentence he could get was six years in jail," he said. "After he pleaded guilty, he was given a life sentence. That sounds a lot like a bait and switch problem which is generally against the law. Whether that was intended, that is really how things appear from David's point of view."
Another issue Sheehan plans to take to the justices is a question of cruel and unusual punishment as defined in the Eight Amendment of the U. S. Constitution.
"I agree that serious penalties should be imposed for serious crimes," he said. "Historically, serious crimes are crimes that people do on purpose, and it's the doing it on purpose that contribute to it becoming a felony.
"To me, you look at DUI as a crime that is defined as not requiring any intention. We don't want people driving if they are drunk. We don't care if they meant it - we don't want them doing it."
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TheRealityPolice
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10-27-09 7:40 PM
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Awww, be nice to Sphinz - he just got a new puddy-tat.....
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navyvet
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10-27-09 2:23 AM
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SphinxRising58: 1st I take exception to your assault on my character; just who are you to make a character judgement of anyone, expecially someone you don't even know. 2nd, I served this country, in the Navy, for 25 years, Have You? 3rd: I certainly don't respect a person who lacks the ability to tolerate another person's point of view. Lastly, I know what I have done for this country, and I really couldn't care less what you, or anyone else thinks.
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Captain
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10-26-09 10:21 PM
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James, the health care costs are not only the result of lawyers, but greedy insurance companies who once actually paid claims. They are now in the business of denying claims and collecting inflated premiums. Lawyers suing doctors doesn't help, but again, greedy malpractice insurance companies (same ugly group) drive up those premiums. Doctors also enjoy the affluent lifestyle and charge a great deal of money to keep we patients happy and well drugged. Finally, we are part of it too. I've had to defend myself against ridiculous lawsuits by "customers" who fall because of their own negligence, and almost immediately feel that they have hit the lottery because they have a wallet they can go after. Greed. It drives men to do unspeakable things. And it is the undoing of our nation and civilized people.
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EllisWyatt
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10-26-09 7:58 PM
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Sphinx I have sympathy for those who, through no fault of their own, lack intelligence. Therefore, I will help you out. The US Constitution gives Congress the power to declare war. It also makes the President the Commander In Chief. Early Presidents fought the Indians without a declaration of war and Thomas Jefferson attacked the Barbary pirates without a Declaration. The War Powers Act of 1973 permits the President to engage in war for 60 days without a Declaration, with an additional 30 days permitted if the President explains that the security of the US is in danger. Can you follow that?
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JamesT
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10-26-09 6:32 PM
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Depending on how much money one has, depends on the sentence. I personally know of attorneys who represent repeat DUI, DWI, and IWD people who have as many as over a dozens different arrests. I met people who with one DUI lost thier license while others habitual drunk and high drivers keep paying lawyers and still keep thier license. Remember, laws are written by lawyers and lobbyist. Lady Justice is a paid whore by the ABA. Judeges are also lawyers and the sleaze goes on. Like healthcare. The num,ber one cause of healthcare costs rising are the greedy lawyers. Look at the television, radio, and magazine ads. Remember the tobacco lawsuits? One Florida law firm pocketed over one BILLION dollars and barely a penny went to what the lawyers claimed it would. As Shakespeare once quoted "The first thing we do, let's kill all the lawyers". In Biblical times. lawyers were known as the most corrupt as absolute power corrupts. Being free has a price and the Law Offices of " Slip,
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Captain
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10-26-09 5:39 PM
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Many DUI-ers simply continue to drive without a license, so the DMV has little power over that part of it. DUI laws have been changed and enhanced greatly. Sometimes it can seem draconian, and how the DUI arrest process works can seem even less fair. But the fact is the laws have been changed so that getting out of a DUI is very hard to do. You can contact your favorite law maker and ask them to change it back, but you will be hard-pressed to find one who wants to take that on.
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SphinxRising58
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10-26-09 4:22 PM
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weshatch: Every hear that 3 times is a charm? Works that way in getting Life also, learn to live with it. The guy had half a dozen or more DUIs on his record, and if you know anything about the law, this can add up to felonies, duh, and let's face facts, the guy is a habitual drunk who clearly showed no concern for other's safety, as well as a waton disreguard for existing laws pertaining to driving under the influence. Waaaa, waaaaa, waaaa.
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SphinxRising58
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10-26-09 4:19 PM
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rover1958: Apparently you know about as little about the Constitution as Ellis, or you would have realized that the President & Commanding Chief of all branches of the military has the right to send troops anywhere he pleases for a certain amount of time with requiring Congress to declare war, duh, any Th grader knows this. Now, at the end of that time period, if Congress declares no funds to be provided, the troops must come home, but if Congress votes to extend the funding, the stay of troops can be extended indefinitely, duh, Consider yourself schooled on politics and how it works legally.
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weshatch
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10-26-09 11:24 AM
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This is nuts, does anyone really think a drunk should have our tax dollars pay for him in prison for life. the life sentence is way out of wack. A drug dealer gets monthes and a drunk gets life, what. I do think six years might be fair and I do think that he should lose the ability to drive. but come on. I want to ask Smith why life. it seems from what I read, it was in his discretion to flie under the three strike provision or not. What are the factors on that call?
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rover1958
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10-26-09 10:53 AM
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Well Ellis, as you constantly thump the 'constitution' around like a sacred Bible, it's well to remember that declaring 'war' and thus legitimizing the event, at least within our society, is a responsibility of the legislative branch. Yet, the 'executive' in the past 50 years has subverted that process through various 'war powers' hocus pocus which has sent recent generations of the mainly disenfranchised members of our society off to die in selfish foreign adventures having little or no bearing on this country's defense.
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SphinxRising58
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10-26-09 9:18 AM
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Apparently this Sheehan is not a very good laywer, or he would realize that any plea agreement does not bind the judge when passing sentence, & each defendant is informed so before judgement is passed. Sheehan goes on to state: "Historically, serious crimes are crimes that people do on purpose, and it's the doing it on purpose that contribute to it becoming a felony." Well, Mr Sheehan, incase you failed to keep tract of laws pertaining to drinking & driving, the mere fact that you are drunk & in a car with the key in the ignition shows intent ( duh ), and since Appleby insisted on drinking & driving several times also shows intent & calous disregard for the safety of other people, duh again so he got what he asked for.
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SphinxRising58
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10-26-09 9:12 AM
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Navyvet: LOL, like anyone believe you have the mentality to ever have served in the military, & if you did, chances are you washed out in boot camp, lol As for drunks who insist on driving, tough rocks for them if the get Life, as no one made them continue to drink & drive. They care only about what they want, & not about the people they maim or kill so rot baby rot & tell Bubba we all said hi, lol
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deerwatchers
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10-26-09 8:31 AM
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I know people like this. My question is why can this habitual drunks get cars? If you do not have a license but you can still go buy a car? Why not somekind of red flag at the DMV? These drunks do not care about other peoples civil rights? So why do they get to keep theirs? I don't know what goes on there but the lawyers are getting rich paying cops not to show up for court? Wow what a slush fund.
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olewillie
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10-26-09 8:23 AM
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I hope he rots in jail with the other driving alcoholics....maybe he can start an AA in jail.
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homer1
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10-26-09 6:46 AM
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Hey "wisdomborn" ! Thanks for the PITY. I feel like I'm in a CHAT ROOM . Maybe we should meet for Coffee or Caramels. Seriously, you do not have all of the facts. "Can't we all just get along" ?
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EllisWyatt
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10-26-09 6:15 AM
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Truth Whether or not the Constitution is incompatible with your worldview is irrelevant. Let me make two clear points. First, our Bill of Rights are "inalienable" rights. That means they cannot be traded, signed, thrown, voted or taken away. Years of activist judges and their court decisions have taken some meat off the bone but that doesn't make it right. Second, the Founders left a simple way for us to update the Constitution to reflect changing times. They foresaw and end to slavery and an end to an Agrarian society. They left an Amendment process. What bothers you liberals, though, is that the Amendment process is so expensive, time consuming and uncertain. So, you have Barry Sotero to sign Executive Orders and liberal judges to either throw out rights or create rights that don't exist, all to suit your desires. The Founders believed that defending oneself against oppressive government was as important as national defense. Thus, the 2nd Amendment.
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D3m0n1k
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10-26-09 5:24 AM
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Meanwhile, as all of you are whining about people doing time for DUI, you have people like Laura Imell who have over 12 DUI's on record and HAS been sentenced to rehab centers numerous times as well as jail and house arrest and then just recently goes out and does YET ANOTHER DUI while SUSPENDED FOR DUI and FLEES from the cops WHILE INTOXICATED! So now whine some more about people doing time for DUI. The fact is my kids could have been out side when this drunk decided to run. So good riddance. Do your time and shut up. You deserve it.
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navyvet
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10-26-09 1:19 AM
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What the H*** is happening in this country? Even getting jail time for DUI is going too far. If the state is going to incarcerate an individual for DUI, it should be in a rehab center. This individual did not harm anyone, and the justification of "well he might" just does'nt get it. A clear case of "Cruel and unusual punishment".
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wisdomborn
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10-25-09 11:53 PM
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I did do my research by the way. "The Moundsville couple had been accused of looking the other way upon finding several minors drinking in their residence after returning home in the early morning hours of Feb. 10, 2008. One of the minors at the party was ********, who died a few hours later after drinking a large amount of whiskey through at beer bong at the house....." Having, vs. hosting....somebody dies, and all you can be is defensive of your own sad little hurt feelings? I pity you tremendously. The man in the article did NOT do anything that resulted in a person's death, though the possibility remains he might have, yes.
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wisdomborn
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10-25-09 11:45 PM
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homie, you really are too funny for words.
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sbrown3318
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10-25-09 11:07 PM
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On a different note.....I have never met any of the Allenby's. My biological father was James Virgil Allenby whom as since passed away. Could anyone give me any information as too weather I amy be related to David Allenby. My mother was Kay Burge and she also had a son Danny Dale Burge whom was James (Jakes') son. I would to know the Allenby side of the family. My mother passed on 9/9/08 and just need to know more about my father's side of the family as she left him when I was one year old. Any info helps. Thanks in advance for any info provided.
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homer1
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10-25-09 10:36 PM
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Hey "wisdomborn" (actually lack of common sense)your first post was not removed it is post 26-28. The couple did not host the party and the young man did not die solely as a result of alcohol. Know the facts or do not comment and you can call me anything that you would like !
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pickles
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10-25-09 8:01 PM
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While I agree that life in prison may be harsh for the crimes he has been convicted of, this guy has repeatedly shown his contempt of the law, and had not taken any of his prior arrests or convictions seriously. This is the sort of guy that drives until he kills someone. He may be an alcoholic, and maybe treatment is a better option for him, and I can think of dozens of other criminals that I would rather see get life than him. But you can't expect me to believe that this guy was never told he could get hit with recidivism. The judge was correct in his sentencing guidlines for a dui 3rd, and the prosecutor did nothing wrong when he went after a guy convicted of multiple felonies. Blame this idiot for continuing to endanger everyone else on the road.
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wisdomborn
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10-25-09 7:01 PM
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Hmmm. My first post, the one where I endorsed this guy getting jail time, was removed. Alas, no I was not aware of his 6 DUI's. Wasn't mentioned in the article. As for this being part of the "3rd strike, you're out", law: I still believe, I'll ALWAYS believe, that justice needs served on a case-by-case basis. And it's pure insanity to smear people sympathetic to his sentence with the term "alcoholic"...any more than it would be to smear those sympathetic to the Moundsville couple as "alcoholics". I agree with the guy who said it doesn't seem right to jail someone for what they MIGHT do. In many areas of Wheeling, that would be, like, half the population.
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homer1
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10-25-09 1:33 PM
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Did anyone notice all of the Attorney advertisements at the top of this news story? "FIGHT YOUR DUI,SAVE YOUR LICENSE" We live in a great SOCIETY ?
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