David Appleby, the first man in West Virginia to get life in prison for multiple DUI offenses, may be getting out of jail.
Appleby will appear before Ohio County Circuit Judge David Sims this morning in an effort to get early release in lieu of his 2016 parole date.
Former Ohio County Circuit Judge Arthur Recht sentenced Appleby, now 54, to life in 2001 after Appleby accepted a plea deal without knowing the full extent of possible penalties.
Court documents state that on Sept.10, 2001, an Ohio County grand jury returned a two-count indictment against Appleby charging him with DUI third offense and driving while on a revoked license for DUI third offense. The DUI third offense charge included a list of seven prior convictions, while the charge of third offense driving on a revoked license for DUI included a list of three such prior convictions.
On Oct. 31, 2001, Appleby admitted that he had prior DUI convictions-one on June 14, 1988, and one on Sept. 8, 1998. Appleby said that he made the admission for the purpose of excluding evidence of his prior convictions from jury consideration.
On Nov. 21, 2001, the day scheduled for trial on the DUI, third offense count, Appleby pleaded guilty to both counts of the indictment. At the plea hearing, Recht advised Appleby that the maximum term of imprisonment for each of the offenses to which he pled guilty was one to three years and that since the sentences could be imposed consecutively, the maximum sentence he could receive was incarceration for a term of two to six years. Recht did not indicate that prosecutor Scott Smith could initiate a recidivist proceeding. The judge accepted the plea and deferred sentencing until a pre-sentence report could be completed.
Smith then filed information alleging that Appleby was a recidivist in that he had three prior convictions for DUI, third offense, one unlawful assault conviction and one felony conviction for driving on a revoked license for DUI third offense. In the end, he got a life sentence.
The action became case law after the West Virginia Supreme Court of Appeals upheld a Recht decision that DUI third offense is a crime of violence.