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.
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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."