No. 35140 - State of West Virginia v. David Harold Eilola
Davis, C.J., dissenting:
In this case the defendant, through acts of domestic violence and terror, cut his
wife's throat, stabbed her in the face and other parts of her body, poured kerosene over her
entire body, and attempted to set her on fire. As a result of the savage crimes committed
against the victim, the trial court sentenced the defendant to consecutive terms of
imprisonment that totaled not less than 9 nor more than 15 years imprisonment. Under this
Court's decision in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), the defendant
would not be eligible for parole until after he served 9 years in prison, even though he had
almost two years of pretrial incarceration. The majority opinion has unwisely chosen to
overrule Middleton so that the defendant will be eligible for parole after serving roughly 7
years. In this regard, the majority opinion overruled Middleton because that opinion would
allow the defendant to be eligible for parole at the same time as a hypothetical defendant
who received the same sentence, but was out on bail prior to his conviction. The majority
opinion found that Middleton was not fair to indigent defendants who are unable to post
bail while awaiting prosecution. For the reasons outlined below, I strongly dissent from the
majority opinion because it is not fair to the victim of this savage domestic violence and
A. Understanding Why the Trial Court Imposed
Consecutive Sentences on the Defendant
When defendants receive multiple convictions, trial judges in this State have
wide discretion in deciding whether to impose concurrent or consecutive sentences. See State v. Allen
, 208 W. Va. 144, 155, 539 S.E.2d 87, 98 (1999) (As for the circuit court's
decision to impose consecutive, rather than concurrent, sentences, we likewise find no abuse
of discretion. At this juncture, however, we wish to emphasize that, while the members of
this Court, had we been sentencing Allen for his numerous misdemeanor convictions, would
not necessarily have ordered his sentences to run consecutively, this disagreement, standing
alone, does not necessitate a reversal of the sentences imposed by the trial court. ); Syl. pt.
3, Keith v. Leverette
, 163 W. Va. 98, 254 S.E.2d 700 (1979) (When a defendant has been
convicted of two separate crimes, before sentence is pronounced for either, the trial court
may, in its discretion, provide that the sentences run concurrently, and unless it does so
provide, the sentences will run consecutively.). Moreover, this Court has recognized that
'[c]onsecutive sentences are an appropriate mechanism for imposing a distinct punishment
for each of two criminal acts.' State v. Holcomb
, 178 W. Va. 455, 462, 360 S.E.2d 232, 239
(1987) (quoting United States v. Lustig
, 555 F. 2d 751, 753 (9th Cir. 1977)).
In the instant proceeding, the defendant was convicted of five offenses and
sentenced as follows: attempted first degree murder - 3 to 15 years; malicious assault
- 2 to
10 years; arson - 2 years; violation of domestic violence protective order- 1 year; and
domestic battery - 1 year. Under its discretionary authority, the trial court could have
imposed concurrent sentences for each conviction. If that had been done, the defendant
collectively would have received a sentence of 3 to 15 years. Under a concurrent sentence
the defendant would have been eligible for parole after 3 years. However, the trial court
elected to impose consecutive sentences for each conviction under consecutive sentences.
The defendant would not be eligible for parole until after serving 9 years imprisonment.
The trial court did not show the defendant mercy by imposing concurrent
sentences because the defendant failed to show any remorse, and because of the terror the
defendant imposed on the victim. This is to say that the trial court took into consideration
what was fair to the victim in deciding what punishment was appropriate for the defendant.
The record in this case showed that the victim had filed for divorce from the
defendant in February 2006. On March 13, 2006, while the divorce was pending, the victim
obtained her second domestic violence protective order against the defendant. After
receiving the second protective order, the victim went home. Shortly after returning home,
the victim watched television with her son's girlfriend, Jacqueline Stanley. The victim
testified during the trial that, while she was watching television, the defendant forced his way
into the home. After entering the home, the defendant forced Ms. Stanley to leave and
thereafter attacked the victim. The victim described the attack as follows:
Q. Okay. What happened then?
A. . . . And then he came after me and pushed me down on the couch, and he started
to - he started to - he started to cut my throat. And I fought with him, you know, he held me
down, and he was trying to, uh, stop my hands from - he was trying to get my hands in his
grip with his left arm that he had across my chest.
Q. What were you doing with your hands at that time?
A. Well, I was pushing the knife away and trying to stop him from cutting me. He cut
me once, and I pushed him away, and he came at me again. And it was like a sawing cutting.
And then he ran out the door.
Q. Did he say anything to you as he was sawing or cutting at your throat?
Q. Did you feel anything when he was sawing and cutting at your throat?
A. Terror. I thought I was going to die.
Q. When the attack ended, what did you see David Eilola do?
A. He went out the front door.
Q. And what was going through your mind at this point?
A. Find my cell phone. . . .
Q. Did you find your cell phone?
A. No. I never found it. I got up off the couch, and I was looking for it. And a couple
of minutes later he came through the front door again, and this time he had the gas can with
Q. Did you say anything to him?
A. I just said, David, don't do this. I said, What are you doing? Don't do this.
Q. And what was his response when you said, David, don't do this? What did he
A. He splashed -- He threw the gas across the living room into the kitchen, and then
he splashed it over the chair, and then he came towards me, and he splashed it up towards
me. And I said, My God, David, don't do this. And then he walked right up to me and he
held it over the top of my head, and he just poured it all over me.
Q. . . . [W]hat happened after he splashed the gas on you?
A. I tried to run out the front door, and he knocked me down. And I was on my back
by the front door, and he was holding me down again across the top of my chest. And he
took-- he took a lighter out of his pocket, and he leaned over me and he lit the carpet beside
Q. Okay. What was going through your mind at this point?
A. I'm going to go up in flames.
Q. And what happened then?
A. I - He lit the carpet down by where my hand was, and I batted it out and just- I
just kept begging him to please don't do this, don't do this to me. . . . And he just
- he went
to light the carpet [again], but he didn't. And he just stopped. (See footnote 1)
It is quite obvious that the victim's testimony of the brutal terror she endured
at the hands of the defendant was a primary reason for the trial court's imposition of
consecutive sentences. The consecutive sentences represented the trial court's beliefs that
the defendant did not deserve to be released early from prison and that the physical and
emotional injury to the victim demanded that the defendant not be released early. See State
v. Tyler, 211 W. Va. 246, 251-52, 565 S.E.2d 368, 373-74 (2002) (Even where victims have
not been harmed during armed robberies, this Court has considered the emotional damage
suffered by the victim.).
B. The Decision in Middleton Was Fair to Victims
of Domestic Violence and Other Crimes
As previously indicated, under the decision in Middleton
the defendant would
not be eligible for parole until after serving 9 years in prison. The majority opinion believed
that the application of Middleton
to the defendant was unfair, because (1) he was indigent
and not able to use his presentence incarceration to shorten his parole eligibility date (See footnote 2)
a hypothetical defendant who was out on bail prior to trial, and received the same type of
sentence, would be eligible for parole at the same time as the defendant. Assuming, as
contended by the majority, that this situation is unfair, there is no state or federal
constitutional violation because of this unfairness.
The majority opinion fails to realize that many things involved with criminal
prosecutions are not fair to defendants. No criminal justice system exists which is completely
fair in all respects to every defendant. For example, two defendants conspire to commit a
crime, one defendant is indigent and the other is not. The defendant who is not indigent
enters a plea of guilty and receives a sentence of probation. The indigent co-conspirator is
convicted at trial and is sentenced to imprisonment. Is that situation fair? Again, two
defendants commit separate murders. One defendant, who is indigent, is convicted and
sentenced to life with the possibility of parole. The second defendant, who is not indigent,
is convicted and sentenced to life without the possibility of parole. Is this situation fair? I
could go on by illustrating a multitude of examples that are not fair in criminal prosecutions. See State v. Booth
, 224 W. Va. 307, 685 S.E.2d 701 (2009) (finding defendant's 80 year
sentence for robbery was not disproportionate to the sentences received by his co-defendants,
namely 1 to 5 years and 1to 50 years); State v. Riley
, 201 W. Va. 708, 500 S.E.2d 524 (1997)
(defendant sentenced to 32 years for second-degree murder); State v. McKenzie
, 197 W. Va.
429, 475 S.E.2d 521 (1996) (defendant sentenced to 5 to 15 years for second-degree murder).
However, in the final analysis, the state and federal constitutions determine what type of
unfairness will be prohibited in criminal prosecutions. See State v. Jones
, 216 W. Va. 666,
669, 610 S.E.2d 1, 4 (2004) (Disparate sentences for codefendants are not per se
unconstitutional. (citation omitted)). There is no authority under the state or federal
constitution that prohibited the unfairness that the majority believes Middleton
The decision in Middleton
was premised on the fairness to victims of crime,
and, in the instant case, to a victim of domestic violence and terror. As previously stated,
the defendant would have to serve 9 years in prison before he would be
eligible for parole. Considering the terror that the victim endured in this case, fairness to the
victim demanded that this defendant sit in prison for at least 9 years before he was released.
The majority opinion has blatantly rejected the concept of fairness for a victim
of domestic violence and terror and has decided that the law of West Virginia must focus
instead upon fairness to a defendant who sliced a woman's throat, stabbed her face, poured
kerosene on her, and attempted to burn her alive. I readily admit that if I have to choose
between fairness to a victim of violent terror and fairness to the perpetrator of violent terror,
I would choose fairness to the victim every day of the week.
C. The Majority Opinion Rewards Criminal
Defendants Who Cannot Post Bail
In order to understand how the majority opinion now rewards criminal
defendants, I must first provide an example of how Middleton
operated before it was
overruled. The effect of the Middleton
opinion was that of allowing a defendant to have less
time on parole. For example, assume that two defendants have the same consecutive
sentences of 1 to 5 years and 2 to 5 years. Moreover, one defendant was out on bail before
sentencing, while the other defendant was in jail for one year before sentencing. Both
defendants are eligible for parole after three years, and both are given parole. Pursuant to
W. Va. Code § 62-12-18 (1997) (2004), a defendant must be sentenced to parole for the
maximum period left on the sentence. Thus, under Middleton
, the defendant who was in jail
for one year before sentencing will be placed on parole for 6 years, but the other defendant
would be on parole for 7 years (this hypothetical does not include good-time credit that the
defendants may have accrued). Under this situation, the indigent defendant obtains the
benefit from being locked up prior to sentencing, and the person who was out on bail is
penalized for getting out on bail prior to sentencing. I say penalized because a person on
parole is not totally free. Under W. Va. Code § 62-12-17 (2004), strict conditions are placed
on defendants who are on parole.
To be clear, the Middleton
decision allowed a defendant to use presentence
incarceration only once. That was for the purpose of shortening the aggregated maximum
term of consecutive sentences. The majority opinion, by overruling Middleton
, allows a
defendant to use presentence incarceration twice
. In the instant case, the defendant will use
his presentence incarceration to make him eligible for parole almost two years before he
should be eligible. Then, the defendant will use the presentence incarceration to shorten his
time on parole by almost two years before it should expire. While I am certain the defendant
appreciates the majority's get-out-of-jail free card, the defendant's ex-wife (See footnote 3)
must now wrestle
with the nightmares of wondering if the defendant will attack her again upon his early release
For the reasons outlined, I respectfully dissent.
The victim is now divorced from the defendant.