IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________

No. 19-0776

_______________

STATE OF WEST VIRGINIA,

Respondent

v.

PAUL C.,

Petitioner

________________________________________________________

Appeal from the Circuit Court of Preston County

The Honorable Steven L. Shaffer, Judge

Criminal Action No. 17-F-32 and 19-F-2

AFFIRMED

________________________________________________________

Submitted: October 14, 2020

Filed: November 5, 2020

Lisa Hyre, Esq.

Public Defender Corporation

for the 18th Judicial Circuit

Kingwood, West Virginia

Counsel for Petitioner

Patrick Morrisey, Esq.

West Virginia Attorney General

Holly M. Flanigan, Esq.

Assistant Attorney General

Counsel for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

FILED

November 5, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “‘This Court’s standard of review concerning a motion to dismiss an 

indictment is, generally, de novo. However, in addition to the de novo standard, where the 

circuit court conducts an evidentiary hearing upon the motion, this Court’s “clearly 

erroneous” standard of review is invoked concerning the circuit court’s findings of fact.’

Syl. Pt. 1, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009).” Syl. Pt. 1, State v. 

Holden, -- W. Va. --, 843 S.E.2d 527 (2020).

2. “‘The right to a trial without unreasonable delay is basic in the

administration of criminal justice and is guaranteed by both the State and federal 

constitution. U.S. Const. Amend. VI; W. Va. Const., Art. 3, § 14.’ Syl. Pt. 1, State v. 

Foddrell, 171 W. Va. 54, 297 S.E.2d 829 (1982).” Syl. Pt. 3, State v. Holden, -- W. Va. -

-, 843 S.E.2d 527 (2020).

3. “It is the three-term rule, W.Va. Code, 62-3-21, which constitutes the 

legislative pronouncement of our speedy trial standard under Article III, Section 14 of the 

West Virginia Constitution.” Syl. Pt. 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 

111 (1986).

4. “‘Pursuant to W.Va.Code § 62-3-21 (1959), when an accused is 

charged with a felony or misdemeanor and arraigned in a court of competent jurisdiction, 
ii

if three regular terms of court pass without trial after the presentment or indictment, the 

accused shall be forever discharged from prosecution for the felony or misdemeanor 

charged unless the failure to try the accused is caused by one of the exceptions enumerated 

in the statute.’ Syllabus, State v. Carter, 204 W.Va. 491, 513 S.E.2d 718 (1998).” Syl. Pt. 

1, State v. Damron, 213 W. Va. 8, 576 S.E.2d 253 (2002).

5. “‘Any term at which a defendant procures a continuance of a trial on 

his own motion after an indictment is returned, or otherwise prevents a trial from being 

held, is not counted as one of the three terms in favor of discharge from prosecution under 

the provisions of Code, 62-3-21, as amended.’ Syl. pt. 2, State ex rel. Spadafore v. Fox, 

155 W.Va. 674, 186 S.E.2d 833 (1972).” Syl. Pt. 3, State v. Fender, 165 W. Va. 440, 268 

S.E.2d 120 (1980).
1

HUTCHISON, Justice:

Petitioner Paul C.1

appeals from an order of the Circuit Court of Preston

County that denied his motion to dismiss an indictment that alleged eighteen felony sexual 

offenses against him involving two minors. Petitioner asserts that three unexcused terms 

of court have passed without a trial and that, pursuant to West Virginia Code § 62-3-21 

(1959), he must be forever discharged from prosecution for the crimes charged. Upon 

careful consideration of the parties’ briefs and oral arguments, the appendix record, and the 

pertinent legal authority, we find that the three-term rule was not violated and affirm the 

circuit court’s order.

I. Factual and Procedural Background

Petitioner was originally indicted on fourteen felony sexual offenses 

including six counts of third-degree sexual assault, see W. Va. Code § 61-8B-5(a)(2), and 

eight counts of sexual abuse by a parent, guardian, custodian, or person in a position of 

trust, see W. Va. Code § 61-8D-5(a), for crimes allegedly occurring between March and 

1

Because this case involves minors and sensitive matters, we follow our 

longstanding practice of using a defendant’s first name and last initial and initials to refer 

to the minor victims. See e.g., W. Va. R. App. P. 40(e); State v. Edward Charles L., 183

W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2

August of 2016. Petitioner was then twenty-three or twenty-four years old, while the two 

female victims, R.T. and H.A., were between the ages of thirteen and fourteen years old.

An investigation report prepared by the Preston County Sheriff’s Department 

indicated that R.T. was taken for a medical examination after disclosing to her mother that 

she had been sexually assaulted by petitioner, who is married to the mother’s niece. R.T. 

reported that the alleged abuse occurred during a period in which petitioner and his wife 

were staying at R.T.’s residence. According to R.T., petitioner repeatedly asked and 

pressured R.T. for sex and that she eventually gave into his requests, the revelation of which 

was precipitated by R.T.’s fear of pregnancy. R.T.’s friend, H.A., made similar allegations 

against petitioner. Further, the State alleged that petitioner was grooming H.A. by buying 

her food. Petitioner was arrested on October 7, 2016.

The terms of the Circuit Court of Preston County commence on the first 

Tuesday in March, the first Tuesday in June, and the third Tuesday in October. See W. Va. 

Trial Ct. R. 2.18. Petitioner claims that because three regular terms of court passed without 

a trial – specifically, the June and October 2017 terms and the March 2018 term – he is 

entitled to be forever discharged from prosecution for the offenses charged in the 

indictment, pursuant to West Virginia Code § 62-3-21. Though this case involves a 

protracted procedural history, we recount only that which is relevant (and gives context) to 

the resolution of the narrow issue on appeal.
3

The March 2017 term of court began on March 7, 2017. Petitioner was 

indicted on March 7, 2017, and trial was scheduled for May 2, 2017. On April 25, 2017, 

petitioner filed an omnibus discovery motion that included at least thirty-four discovery 

requests. On April 28, 2017, petitioner filed a motion for the medical and mental health 

records of the alleged victims. Petitioner filed a motion to postpone the trial on the 

scheduled trial date of May 2, 2017. By order entered on May 8, 2017, the circuit court 

granted petitioner’s motion and noted that it would reset the trial date at a June 9, 2017, 

hearing, during the next term of court, at which it would also consider pre-trial motions. 

The June 2017 term of court began on June 6, 2017. At the scheduled June 

9, 2017, hearing, the circuit court, based upon the proffer of counsel regarding the alleged 

victims’ medical and mental health records, determined that a guardian ad litem 

(“guardian”) should be appointed and, by subsequent order, appointed Natalie J. Sal. In an 

order entered on July 13, 2017, the circuit court rescheduled the trial for August 29, 2017, 

and made rulings on petitioner’s pretrial motions. 

On August 24, 2017, the State filed a motion to continue the trial that was 

scheduled for August 29, 2017, on the ground that “in preparing for trial . . . and after 

discussion with the [guardian] . . . [the State] has been informed that the two alleged child 

victims are undergoing counseling but are not yet ready to testify and need more counseling 

before they would be able to testify.” By order entered on August 28, 2017, the circuit 

court granted the State’s motion to postpone the trial, “noting counsel for the Defendant 
4

does not object.” The court rescheduled the trial for January 2, 2018, continuing it to the 

next term of court.

Meanwhile, on September 19, 2017, the State filed a motion to allow the 

alleged child victims to testify at trial by live, two-way closed-circuit video, pursuant to 

West Virginia Code § 62-6B-4,

2

“to avoid psychological trauma from having to confront 

the Defendant in person at a trial.” The circuit court ordered that a hearing on the State’s 

motion be conducted on November 9, 2017.

The October 2017 term of court began on October 17, 2017. By order entered 

on November 9, 2017, the circuit court ordered that the confidential medical and 

psychological and/or psychiatric records of R.T. and H.A. from February of 2016 to the 

present, and on a continuing basis through the six months following the date of entry of the 

court’s order, be provided to the court and guardian for in-camera review. The circuit court 

found that, pursuant to State v. Roy, 194 W. Va., 276, 460 S.E.2d 277 (1995),3

it should 

review such records to determine if they “are sufficiently relevant to the determination of 

2

West Virginia Code § 62-6B-4, inter alia, sets forth the procedures for 

taking testimony of child witnesses by live, two-way closed-circuit testimony.

3 In Roy, upon consideration of a discovery request for confidential 

counseling records of a juvenile victim, this Court held that if an accused can show the 

relevance of such statutorily protected records, they may be discovered and used to 

impeach a prosecuting witness’s credibility.
5

the issues before the [c]ourt to outweigh the confidentiality requirements of W. Va. Code 

§ 49-7-1.”4

On November 27, 2017, the circuit court appointed a psychologist to 

interview R.T. and H.A. for the purpose of determining whether they should be permitted 

to testify via closed-circuit video and ordered that a report thereon be provided to the court 

as soon as possible, as required by West Virginia Code § 62-6B-3(d).5

See State v. David 

K., 238 W. Va. 33, 41, 792 S.E.2d 44, 52 (2016) (discussing the constitutional 

underpinnings and legislative purpose of West Virginia Code § 62-6B-1, et seq., entitled 

4

West Virginia Code § 49-7-1 was recodified as § 49-5-101 by Acts 2015, 

c. 46, eff. May 17, 2015, and subsequently amended by Acts 2016, c. 33, eff. June 10, 

2016.

5

West Virginia Code § 62-6B-3(d) provides: 

(d) In determining whether to allow a child witness to 

testify through live, closed-circuit television the court shall 

appoint a psychiatrist or a licensed psychologist with at least 

five years clinical experience who shall serve as an advisor or 

friend of the court to provide the court with an expert opinion 

as to whether, to a reasonable degree of professional certainty, 

the child witness will suffer severe emotional harm, be unable 

to testify based solely on being in the physical presence of the 

defendant while testifying and that the child witness does not 

evidence signs of being subjected to undue influence or 

coercion. The opinion of the psychiatrist or licensed 

psychologist shall be filed with the circuit court at least thirty 

days prior to the final hearing on the use of live, closed-circuit 

television and the defendant shall be allowed to review the 

opinion and present evidence on the issue by the use of an 

expert or experts or otherwise.
6

“Protection and Preservation of Statements and Testimony of Child Witnesses,” and the 

procedural safeguards therein so as to “accomplish the twin goals of protecting child 

victims when justice so requires and ensuring the constitutional right of a defendant to 

confront his/her accuser[.]”) An order substituting the evaluating psychologist was entered 

on December 18, 2017.

On December 29, 2017, the State and the guardian moved to continue the 

January 2, 2018, trial on the ground that the psychological evaluations that were previously 

ordered for the purpose of determining whether the alleged child victims should be 

permitted to testify by closed-circuit video had not yet been conducted. Noting that “the 

process for this evaluation would likely take longer than the date for [i.e., would not be 

concluded by] the scheduled jury trial[,]” the circuit court found that a continuance was 

warranted. See W. Va. Code § 62-6B-3(d) (providing that the evaluator’s opinion must be 

filed at least thirty days before the final hearing on the use of closed-circuit video and that 

“the defendant shall be allowed to review the opinion and present evidence on the issue by 

the use of an expert or experts or otherwise”). By order entered on December 29, 2017, 

the circuit court continued petitioner’s trial to April 3, 2018, into the next term of court, 

with no objection by petitioner noted. 

On February 22, 2018, the circuit court received the forensic evaluations of 

R.T. and H.A. by the court-appointed psychologist, Dr. Edward Baker, and ordered that 

they be filed under seal. By order entered February 23, 2018, the court ordered that a 
7

hearing on the State’s motion to allow R.T. and H.A. to testify at petitioner’s trial by closedcircuit video be held on March 29, 2018.

The March 2018 term of court began on March 6, 2018. A motions hearing 

was conducted on March 29, 2018, at which the circuit court considered petitioner’s motion 

regarding the disclosure of “any and all evidence pursuant to Rule 16 of the West Virginia 

Rules of Criminal Procedure” and renewed motion for the alleged victims’ medical and 

mental health records. With regard to the motion to allow R.T. and H.A. to testify at trial 

by closed-circuit video, petitioner moved to postpone the court’s consideration of that 

motion in order to allow counsel for petitioner sufficient time to review the alleged victims’ 

psychological records, which the circuit court had only just released to the parties following 

the court’s in-camera review of the same. The circuit court scheduled a new trial date for 

May 15, 2018 (within the March 2018 term), with the understanding that “intervening 

circumstances” involving the court’s busy docket –including the fact that the court had two 

other trials set for that date – might warrant another postponement.6

By order entered on April 6, 2018, the circuit court ordered that a hearing be 

conducted on April 23, 2018, regarding petitioner’s request to review the alleged victims’ 

psychological records and their possible use at trial and on the State’s motion to allow the 

6 The circuit court and the parties referenced the fact that there were “trials starting 

next Tuesday for about the next seven weeks in a row.”
8

alleged victims to testify by closed-circuit video. The court also set a pretrial conference 

for May 10, 2018.

The hearing scheduled for April 23, 2018, was held on May 10, 2018.7

During the course of that hearing, it became clear that the case would not be ready for trial 

on May 15. Among other things, petitioner’s counsel advised the court that she had 

“several more motions now, based on some of this stuff [i.e., issues discussed during the 

hearing],” including a motion to prohibit the evaluating psychologist, Dr. Baker, from 

testifying at trial. The court then observed, “Well, this case is not ready for trial for 

Tuesday. I think that’s – as [petitioner’s counsel] just indicated, she has some motions and 

things that she needs to file, and I suspect that’s true.” Petitioner’s counsel responded, 

“[v]ery well, sir,” to the court’s observation. The State suggested a new trial date of August 

14, 2018, during the next term of court, to which petitioner’s counsel agreed, stating 

“[t]hat’s fine with us.” However, the court secretary, who was present at the hearing, 

advised the court and the parties that there were “two other cases right now, set for August 

14th[,]” to which the court remarked, “Well, I won’t be – I won’t be the judge on that time

[sic], so we’ll have to see if [the newly elected judge] can do it. . . . [W]e’ll see what 

7 This hearing was apparently rescheduled due to the retirement of thenpresiding Judge Lawrance S. Miller, Jr., Judge Miller’s subsequent appointment as a senior 

status judge to the case, Judge Miller’s resignation as a senior status judge, and the 

appointment of Senior Status Judge Larry V. Starcher, all occurring up to and pending the 

May 2018 judicial election. Judge Steven L. Shaffer was elected on May 8, 2018, was 

sworn into office on May 18, 2018, and began presiding over cases, including this case, on 

May 29, 2018. 
9

happens with it. The new judge may juggle up the schedule in ways that none of us know 

about right now.” See n.7. As for the State’s motion to allow the alleged victims to testify 

by closed-circuit video, the circuit court took the motion under advisement. 

The June 2018 term of court began on June 5, 2018. By order entered on 

July 9, 2018, based upon Dr. Baker’s evaluations, the circuit court granted the State’s 

motion to allow R.T. and H.A. to testify by closed-circuit video. Thereafter, the parties 

filed numerous substantive motions. During the August 9, 2018, pretrial hearing, counsel 

for petitioner moved for a continuance, which the circuit court granted. 

On August 16, 2018, the State moved to dismiss the indictment, without 

prejudice, on the ground that, “[i]n preparing this case for trial[,] the State now alleges that 

additional crimes have been committed by the Defendant that have not been previously 

charged herein.” The State asserted that, in the interest of justice and judicial efficiency, 

all charges should be prosecuted “in one indictment and through one trial, for purposes of 

a clean record and the inter related [sic] nature of the crimes alleged.” Over petitioner’s 

objections, the circuit court granted the State’s motion to dismiss the indictment, without 

prejudice, by order entered on August 16, 2018.8

8 In a prior order entered on August 3, 2018, the circuit court granted the 

State’s motion to dismiss Counts 13 and 14 of the indictment based upon the State’s 

representation that it did not have sufficient evidence to proceed to trial on these charges. 
10

The October 2018 term of court began on October 16, 2018. Petitioner had 

been recharged on August 16, 2018, in the Magistrate Court of Preston County and was 

subsequently indicted on January 5, 2019, on eighteen felony sex offenses including nine 

counts of third-degree sexual assault and nine counts of sexual abuse by a parent, guardian, 

custodian, or person in a position of trust, all involving the minor victims H.A. and R.T. 

Eight of the charges in this indictment were new charges that had not been included in the 

original indictment. Petitioner was arraigned on January 15, 2019. 

On February 5, 2019, the State filed a motion to set trial within the October 

2018 term of court, which term would end on March 4, 2019. The circuit court denied the 

motion due to its congested docket, noting that it had no time available for a trial between 

the February 5, 2019, filing of the motion, and the end of the October 2018 term of court 

on March 4, 2019.

Petitioner filed a motion to dismiss the indictment on February 15, 2019, on 

the ground that his right to be tried within three regular terms of court, pursuant to West 

Virginia Code § 63-2-21, had been violated.

The March 2019 term of court began on March 5, 2019. A hearing on 

petitioner’s motion to dismiss was conducted on March 21, 2019, after which the circuit 

court took the matter under advisement. At a subsequent hearing on April 15, 2019, the 

court advised the parties that the motion to dismiss would be denied and set trial for May 

7, 2019. The court memorialized its ruling in an order entered on April 22, 2019.
11

On May 2, 2019, petitioner filed a petition for a writ of prohibition with this 

Court, which was refused by order entered on May 6, 2019. On May 8, 2019, petitioner 

entered an Alford/Kennedy plea9

to two counts of third-degree sexual assault (counts one 

and seven of the indictment) and one count of sexual abuse by a parent, guardian, custodian, 

or person in a position of trust (count eight). As a condition of the plea, petitioner reserved 

the right to challenge his convictions based upon a violation of the three-term rule.

Petitioner now appeals.

II. Standard of Review 

We review the circuit court’s order denying petitioner’s motion to dismiss 

the indictment under the following standard: 

“This Court’s standard of review concerning a motion 

to dismiss an indictment is, generally, de novo. However, in 

addition to the de novo standard, where the circuit court 

conducts an evidentiary hearing upon the motion, this Court’s 

‘clearly erroneous’ standard of review is invoked concerning 

the circuit court’s findings of fact.” Syl. Pt. 1, State v. Grimes, 

226 W. Va. 411, 701 S.E.2d 449 (2009).

Syl. Pt. 1, State v. Holden, -- W. Va. --, 843 S.E.2d 527 (2020). 

9

An Alford plea, from the decision in North Carolina v. Alford, 400 U.S. 25, 

91 S.Ct. 160, 27 L.Ed.2d 162 (1970), allows a defendant to enter a guilty plea without 

admitting guilt. See Syl. Pt. 1, Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987) 

(stating that “[a]n accused may voluntarily, knowingly and understandingly consent to the 

imposition of a prison sentence even though he is unwilling to admit participation in the 

crime, if he intelligently concludes that his interests require a guilty plea and the record 

supports the conclusion that a jury could convict him.”).
12

III. Discussion

Petitioner’s sole assignment of error is that West Virginia Code § 62-3-21 

entitles him to be forever discharged from prosecution for the crimes alleged in the 

indictment because three regular terms of court following the term in which he was indicted 

passed without a trial.10 It is well established that “‘[t]he right to a trial without 

unreasonable delay is basic in the administration of criminal justice and is guaranteed by 

both the State and federal constitution. U.S. Const. Amend. VI; W. Va. Const., Art. 3, § 

14.’” Holden, -- W.Va. at --, 843 S.E.2d at 529, syl. pt. 3 (quoting Syl. Pt. 1, State v. 

Foddrell, 171 W. Va. 54, 297 S.E.2d 829 (1982)). Further, this Court has declared that

10 Petitioner’s assignment of error recognizes that “[w]hen counting terms for 

purposes of the three-term rule, the term in which the defendant is indicted is not counted 

as one of the three terms.” State v. Carrico, 189 W. Va. 40, 44, 427 S.E.2d 474, 478 (1993). 

As we held in syllabus point four of Carrico, 

“[t]he three regular terms of a court essential to the right of a 

defendant to be discharged from further prosecution, pursuant 

to provisions of the Code, 62–3–21, as amended, are regular 

terms occuring [sic] subsequent to the ending of the term at 

which the indictment against him is found. The term at which 

the indictment is returned is not to be counted in favor of the 

discharge of a defendant.” Syl. pt. 1, State ex rel. Smith v. 

DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961) [overruled on 

other grounds State ex rel. Sutton v. Keadle, 176 W. Va. 138, 

342 S.E.2d 103 (1985)].

189 W. Va. at 42, 427 S.E.2d at 476. In petitioner’s case, the indictment against him was 

returned during the March 2017 term of court. Therefore, although this term passed without 

a trial, it is not counted in petitioner’s favor for purposes of determining whether the threeterm rule has been violated. 
13

“[i]t is the three-term rule, W.Va. Code, 62-3-21, which constitutes the legislative 

pronouncement of our speedy trial standard under Article III, Section 14 of the West 

Virginia Constitution.” Syl. Pt. 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111

(1986). West Virginia Code § 62-3-21 provides: 

Every person charged by presentment or indictment 

with a felony or misdemeanor, and remanded to a court of 

competent jurisdiction for trial, shall be forever discharged 

from prosecution for the offense, if there be three regular terms 

of such court, after the presentment is made or the indictment 

is found against him, without a trial, unless the failure to try 

him was caused by his insanity; or by the witnesses for the 

State being enticed or kept away, or prevented from attending 

by sickness or inevitable accident; or by a continuance granted 

on the motion of the accused; or by reason of his escaping from 

jail, or failing to appear according to his recognizance, or of 

the inability of the jury to agree in their verdict; and every 

person charged with a misdemeanor before a justice of the 

peace, city police judge, or any other inferior tribunal, and who 

has therein been found guilty and has appealed his conviction 

of guilt and sentence to a court of record, shall be forever 

discharged from further prosecution for the offense set forth in 

the warrant against him, if after his having appealed such 

conviction and sentence, there be three regular terms of such 

court without a trial, unless the failure to try him was for one 

of the causes hereinabove set forth relating to proceedings on 

indictment.

As we held in syllabus point one of State v. Damron, 213 W. Va. 8, 576 S.E.2d 253 (2002), 

“[p]ursuant to W. Va.Code § 62-3-21 (1959), when an accused 

is charged with a felony or misdemeanor and arraigned in a 

court of competent jurisdiction, if three regular terms of court 

pass without trial after the presentment or indictment, the 

accused shall be forever discharged from prosecution for the 

felony or misdemeanor charged unless the failure to try the 

accused is caused by one of the exceptions enumerated in the 

statute.” Syllabus, State v. Carter, 204 W. Va. 491, 513 S.E.2d 

718 (1998).
14

Petitioner contends that the State’s failure to try him within three regular 

terms of court must be “caused by one of the exceptions enumerated in the statute.” Id.

Otherwise, he must be “forever discharged from prosecution” for the offenses alleged in 

the indictment. Id. He argues that the June 2017, October 2017, and March 2018 terms of 

court passed without a trial11 and that none of the exceptions enumerated in West Virginia 

Code § 62-3-21 apply – that is, the trial delay was not caused by petitioner’s insanity; by 

the State’s witnesses “being enticed or kept away, or prevented from attending by sickness 

or inevitable accident”; by petitioner’s motion for a continuance; because petitioner 

escaped from jail or failure to appear; or by the jury’s failure to reach a verdict. Id.

Petitioner argues that, rather, the June and October 2017 terms and the March 2018 term 

passed as a direct result of the State’s failure to diligently prepare for trial and that he 

neither caused nor contributed to the delays.

In reviewing the three terms of court at issue, we need look no further than 

the March 2018 term of court, which we easily conclude was excused and, if we assume 

that the remaining two terms (the June and October 2017 terms) were unexcused, is 

11 As previously noted, petitioner acknowledges that the March 2017 term of court, 

the term in which he was indicted, does not count as an unexcused term for purposes of the 

three-term rule. See n.9, supra. Further, petitioner does not contend that either the October 

2018 term, in which he filed his motion to dismiss the indictment, or March 2019 term, in 

which the circuit court held a hearing on the motion, denied the motion, and petitioner 

entered into a plea agreement, count towards a three-term rule violation. Thus, with regard 

to the October 2018 and March 2019 terms, petitioner implicitly acknowledges that “even 

though [he] did not make a formal motion for a continuance . . ., if he were a moving party 

in a proceeding which necessitated such continuance, such term should not be counted.” 

State ex rel. Spadafore v. Fox, 155 W. Va. 674, 679, 186 S.E.2d 833, 836 (1972). 
15

determinative that the three-term rule was not violated. At the May 10, 2018, hearing that 

was held five days before the scheduled trial, the circuit court candidly assessed the posture 

of the case and declared that the matter was not ready for trial. Specifically, petitioner’s 

counsel informed the court that she had “several more motions” to file based upon issues 

that were discussed during that hearing, to which the circuit court responded, “Well, this 

case is not ready for trial for Tuesday. . . . [petitioner’s counsel] has some motions and 

things that she needs to file and I suspect that’s true.” Petitioner’s counsel agreed with the 

court’s assessment. The State suggested a new trial date of August 14, 2018, during the 

next term of court, to which petitioner’s counsel also agreed, along with the 

acknowledgment that the recent election of a new judge and the court’s busy docket might 

postpone the trial even further. This Court has held that 

“[a]ny term at which a defendant procures a continuance of a 

trial on his own motion after an indictment is returned, or 

otherwise prevents a trial from being held, is not counted as 

one of the three terms in favor of discharge from prosecution 

under the provisions of Code, 62-3-21, as amended.” Syl. pt. 

2, State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 

833 (1972).

Syl. Pt. 3, State v. Fender, 165 W. Va. 440, 268 S.E.2d 120 (1980). Petitioner did not make 

a formal motion to continue. However, based upon the timing (five days before trial) and 

the nature of at least one of the identified motions he intended to file (to prohibit the trial 

testimony of the evaluating psychologist), petitioner made it clear that a continuance was 

warranted, and a continuance was agreed upon. 

“We do not think that the language used in the statute, ‘on 

motion of the accused,’ means that the accused party must 
16

make a formal motion in the court in which the indictment is 

pending in order to charge him with the delay in bringing him 

to trial. If he instigates a proceeding which forces a 

continuance of the case at a particular term of court, he will not 

be permitted to take advantage of the delay thus occasioned.”

State ex rel. Farley v. Kramer, 153 W. Va. 159, 172–73, 169 S.E.2d 106, 114–15 (1969)

cert. denied 396 U.S. 986 (1969) (internal citation omitted). Given these facts, it is clear 

that the March 2018 term was an excused term for purposes of the three-term rule. Even 

if the June and October 2017 terms were unexcused,12 because the March 2018 term was 

excused, we conclude that three unexcused terms of court did not pass without a trial and 

petitioner’s right to be tried without unreasonable delay, pursuant to West Virginia Code 

§62-3-21, was not violated.13

IV. Conclusion

For the foregoing reasons, the circuit court’s April 22, 2019, order denying 

petitioner’s motion to dismiss the indictment is hereby affirmed.

Affirmed. 

12 It is not necessary that we determine whether the June and/or October 2017 

terms of court were unexcused in order to resolve the question of whether the three-term 

rule was violated in this case.

13 We observe that the State was “entitled to reindict after a nolle prosequi if 

the prosecution can conduct the trial within the constraints of the three-term rule.” Carrico, 

189 W. Va. at 45, 427 S.E.2d at 479. Having determined that three unexcused terms had 

not passed without a trial prior to the dismissal of the original indictment, the State was 

entitled to reindict petitioner.