West Virginia’s Two-Term Rule: Triggered by Arrest-and-Jailing, Excluding the Arrest Term, and Requiring Immediate Pre-Indictment Release

Introduction

In State of West Virginia ex rel. Sonté C. Butler v. Misty Adams, Superintendent, Northern Regional Jail (W. Va. May 18, 2026), the Supreme Court of Appeals of West Virginia addressed the meaning and mechanics of the “two-term rule” in West Virginia Code section 62-2-12 (2020), which limits how long a person may remain jailed on a criminal charge without being indicted.

Petitioner Sonté C. Butler was arrested and jailed in Ohio County on August 15, 2023, and remained incarcerated pre-indictment for 359 days. He sought habeas relief, arguing that because he was not indicted “before the end of the second term of the court, at which he is held to answer,” he was entitled to discharge from imprisonment under section 62-2-12. The circuit court denied his request, reasoning (i) the two-term “clock” began only when he was “held to answer in circuit court” after magistrate bind-over, and (ii) his preliminary-hearing waiver/continuance meant early terms should not count against the State.

While Butler’s petition was pending, he was indicted and later pleaded guilty, rendering the pre-indictment confinement dispute technically moot. The Court nonetheless reached the merits under the “Israel test” for deciding technically moot issues.

Summary of the Opinion

The Court (Wooton, J.) held:

1. Trigger: The two-term rule in West Virginia Code section 62-2-12 (2020) is triggered when a defendant is arrested and jailed on a criminal charge.
2. Counting terms: The term of court in which the defendant is arrested and jailed does not count as a “term” for purposes of determining whether the defendant was indicted “before the end of the second term.”
3. Remedy: If section 62-2-12 is violated, the remedy is mandatory immediate discharge from pre-indictment confinement (release from that confinement), with no judicial discretion to deny such a motion when the statutory prerequisites are met.

Applying these rules, the Court concluded Butler should have been discharged from pre-indictment confinement because the State failed to indict within the two relevant terms. Although the Court granted the writ, it acknowledged that no practical relief remained because Butler had since been indicted, convicted, and sentenced; section 62-2-12 does not invalidate later indictments or undo convictions.

Analysis

Precedents Cited

1) Jurisdiction, standards of review, and justiciability

• Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York and State ex rel. McGraw v. Telecheck Servs., Inc.: These cases grounded the Court’s original habeas jurisdiction and framed the Court’s authority to decide the petition.
• Chrystal R.M. v. Charlie A.L.: Provided the de novo standard for statutory interpretation, critical because the case turned on the meaning of “held to answer” in section 62-2-12 and how to count “terms.”
• State ex rel. Bluestone Coal Corp. v. Mazzone, State v. Foye, and State ex rel. W. Va. Secondary Sch. Activities Comm'n v. Cuomo: Supplied the general mootness framework—mootness is typically jurisdictional and ordinarily bars decision where no live controversy remains.
• Israel by Israel v. W. Va. Secondary Schools Activities Com'n: This was the doctrinal gateway to reach the merits. The Court held all three factors were satisfied: serious collateral consequences of extended pre-indictment incarceration; issues of great public interest; and issues that frequently evade appellate review because indictment moots them.
• Firefighters Local Union No. 1784 v. Stotts: Cited (via Bluestone) for the proposition that a case may become moot through intervening events even if live when filed.
• State v. White (memorandum decision): Used as an analogy (involving the “one-term rule”) demonstrating that pre-conviction confinement disputes may become moot after conviction/sentence, reinforcing the Court’s mootness conclusion here.

2) The two-term rule’s meaning and operation

• Ex parte Blankenship: The Court treated Blankenship as the “lynchpin” of two-term rule analysis. It did two key things: (i) confirmed that failure to indict within the statutory time releases a defendant from imprisonment but does not bar later prosecution; and (ii) demonstrated the term-counting method—Blankenship did not count the arrest term and instead counted the two full terms that followed. This precedent drove the Court’s holding that the arrest term does not count and reinforced the limited nature of the remedy.
• State ex rel. Shifflet v. Rudloff: Provided modern articulation of legislative purpose—preventing citizens from “languishing in custody without indictment.” It also supported the Court’s strict approach: only the statute’s enumerated exceptions excuse delay, and practical difficulties (there, competency proceedings) do not create additional exceptions. The Court analogized this reasoning to reject attempts to excuse delay based on preliminary-hearing issues or other case-processing considerations.
• Bell v. Com., Hall v. Com., and Glover v. Com.: These Virginia cases were used comparatively to contextualize two-term rule lineage and remedies. In particular, Glover supported the Court’s conclusion that once a defendant is held by virtue of later proceedings/judgment, a belated ruling on pre-indictment release cannot provide practical relief—mirroring the Court’s mootness-remedy limitation.

3) Statutory construction methodology

• State v. Fuller: Supplied the threshold rule: construction is necessary only when language is ambiguous. This enabled the Court to classify “held to answer” as susceptible to competing reasonable interpretations.
• Farley v. Buckalew and Liberty Mut. Ins. Co. v. Morrisey: Reinforced that ambiguous statutes must be construed before application, validating the Court’s deep interpretive analysis.
• Smith v. State Workmen's Compensation Commissioner and State v. McClain: Anchored the “primary object” of interpretation—ascertaining legislative intent. The Court used this lens to favor an interpretation that limits, rather than extends, pre-indictment jail time.
• Brooke B. v. Ray, State v. Butler, and In re D.K.: These cases supported the anti-insertion canon: courts must not add language the Legislature omitted. The Court invoked this to reject importing “in circuit court” into section 62-2-12 from West Virginia Code section 62-1-8’s preliminary-hearing language.

4) Preliminary hearings and indictment sequencing

• State v. Davis and State ex rel. Rowe v. Ferguson: These cases were central to rejecting the circuit court’s “rewarding delay” rationale. They establish that a preliminary hearing is not required if the State indicts first (or before a preliminary hearing can be held). Therefore, defense-side preliminary-hearing waivers or continuances do not necessarily prevent the State from timely presenting the case to a grand jury.

5) Stare decisis and term-counting stability

• Woodrum v. Johnson and Dailey v. Bechtel Corp.: These cases framed stare decisis as policy promoting stability, deviated from only for “urgent reason.” The Court used this to adhere to Blankenship on excluding the arrest term from the term count.

Legal Reasoning

1) Mootness, yet merits review under Israel

The Court first determined mootness: once Butler was indicted, he was no longer “confined in jail, on a criminal charge” without indictment, so the immediate controversy evaporated. Still, the Court applied the three-part Israel by Israel v. W. Va. Secondary Schools Activities Com'n test and found:

• Collateral consequences: prolonged pre-indictment incarceration is a severe liberty deprivation with significant practical consequences.
• Public importance: the issue governs how long the State may hold felony arrestees without indictment.
• Evasion of review: the State can moot challenges simply by later indicting, making appellate guidance otherwise hard to obtain.

2) Defining when the two-term clock starts (“held to answer”)

The interpretive dispute was whether “held to answer” in West Virginia Code section 62-2-12 means “held to answer in circuit court” after magistrate bind-over (as the circuit court held), or whether it begins when the person is arrested and jailed.

The respondent’s preferred reading relied on West Virginia Code section 62-1-8 (2020), which says that after a preliminary hearing establishes probable cause, the magistrate shall “hold him to answer in the court having jurisdiction to try criminal cases.” The Supreme Court rejected importing that phrase because:

• Different function: the two-term rule caps pre-indictment confinement; section 62-1-8 addresses preliminary hearings and procedural transition, not the outer limit on jail time without indictment.
• Textual restraint: under Brooke B. v. Ray / State v. Butler / In re D.K., courts cannot add words (“in circuit court”) that the Legislature did not include in section 62-2-12.
• Legislative purpose: relying on State ex rel. Shifflet v. Rudloff, the Court emphasized the statute’s protective role against prolonged detention without indictment. Starting the clock only at bind-over could materially extend detention (as it would have here, by months).
• Practical criminal procedure: under State v. Davis and State ex rel. Rowe v. Ferguson, the State may indict before preliminary hearing, meaning delays surrounding preliminary hearings do not necessarily justify delays in indictment.

The Court therefore adopted a clear, custody-centered trigger: arrest-and-jailing on a criminal charge.

3) Counting “terms”: excluding the arrest term

On whether the term of arrest counts, the Court treated the issue as settled by Ex parte Blankenship. Applying stare decisis as explained in Woodrum v. Johnson (citing Dailey v. Bechtel Corp.), the Court found no “urgent reason” to depart from the long-standing method: the arrest term does not count; the State must indict by the end of the next two full terms.

4) Remedy: mandatory discharge from pre-indictment confinement—and only that

The Court underscored that section 62-2-12 is narrowly remedial: it mandates release from the specific condition of pre-indictment confinement. It does not: (i) invalidate a later indictment, (ii) bar future prosecution, or (iii) undo a conviction or sentence. This follows the logic of Ex parte Blankenship (release from imprisonment but not prosecution) and is consistent with the remedial limitation discussed with reference to Glover v. Com..

Impact

• Bright-line trigger for practitioners and courts: Defense counsel can now calculate the two-term window from the date the client is arrested and jailed, not from preliminary hearing waiver/bind-over. Prosecutors must treat “arrest-and-jail” as the operative start.
• Reduced ability to “toll” by preliminary-hearing posture: The Court’s reliance on State v. Davis / State ex rel. Rowe v. Ferguson signals that preliminary-hearing delays—whether by waiver, continuance, or negotiation—do not inherently excuse failure to indict within the two-term cap, because indictment can occur without a preliminary hearing.
• Term-counting clarified (and reaffirmed): By expressly holding that the arrest term does not count, the Court eliminates ongoing confusion and aligns modern practice with Ex parte Blankenship.
• Mandatory release as an enforcement mechanism: The Court’s “no discretion” language increases the likelihood that circuit courts will grant timely discharge motions. The practical consequence may be increased prosecutorial urgency to obtain indictments within the two-term window, especially in jurisdictions with fewer grand juries per year.
• Mootness strategy curtailed in effect (not doctrine): While indictment will still moot individual release claims, the Court’s decision to reach the merits under the Israel framework provides precedential guidance that can be invoked in future cases before they become moot.

Complex Concepts Simplified

• “Two-term rule” (W. Va. Code § 62-2-12): If a person is in jail on a criminal charge and the State does not indict within the required time, the person must be released from that pre-indictment jail confinement (unless a narrow statutory exception applies).
• “Term of court”: A fixed session period of a circuit court (here, Ohio County’s terms begin in January, May, and September). The decision measures time by these terms, not by a day-count alone.
• “Held to answer”: This opinion resolves that, for the two-term rule, it means the defendant is being held in jail after arrest on the charge—not only after a magistrate’s preliminary hearing or bind-over.
• Preliminary hearing vs. indictment: A preliminary hearing tests probable cause in magistrate court, but the State may bypass it by securing an indictment first. Therefore, preliminary-hearing delay does not inherently prevent indictment.
• Mootness: A case becomes moot when events (like an indictment) remove the court’s ability to provide the requested relief. The Court still decided the issues because they are important, recurring, and often evade review.
• Mandatory remedy, limited scope: The remedy is immediate release from pre-indictment confinement only; it does not erase charges, prevent later indictment, or undo a conviction.

Conclusion

State of West Virginia ex rel. Sonté C. Butler v. Misty Adams, Superintendent, Northern Regional Jail supplies definitive, practice-shaping rules for West Virginia Code section 62-2-12 (2020): the two-term clock starts when a defendant is arrested and jailed; the arrest term does not count; and a violation compels immediate discharge from pre-indictment confinement. Although the individual writ provided no practical relief due to mootness, the opinion materially strengthens the statute’s role as a liberty-protecting backstop against prolonged, unindicted incarceration and clarifies enforcement obligations for circuit courts and prosecutors statewide.