Keefe v. State ( 2021 )

11/02/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0409
DA 21-0409
FILED
STEVEN WAYNE KEEFE,
NOV 0 2 2021
Bowen Greenwood
Petitioner and Appellant, Clerk of Suprerne Court
State., of Montana
v. ORDER
STATE OF MONTANA,
Respondent and Appellee.
Before the Court is Appellant Steven Wayne Keefe's Motion for Judicial Notice, to
which the State of Montana objects. Keefe's appeal arises following this Court's remand to
the Eighth Judicial District Court for a resentencing hearing in light of the factors outlined in
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012). State v. Keefe, 2021 MT 8,
403 Mont. 1, 478 P.3 d 830. On remand, the District Court held a new hearing and entered an
Arnended Judgrnent and Sentence on July 16, 2021, re-imposing consecutive life sentences
on each of the three deliberate homicide charges and a consecutive ten-year sentence for the
burglary charge, with ten years' enhancement on each count for use of a weapon. The court
did not restrict Keefe's eligibility for parole.
Keefe filed his notice of appeal from the final judgment on August 16 and his opening
brief on appeal on October 14, 2021. The next day he moved for judicial notice of the
sentence calculations his counsel requested from the Montana Department of Corrections,
which a DOC Correctional Treatrnent Specialist e-rnailed to counsel on August 26, 2021.
Keefe submits the calculations worksheet under defense counsel's affidavit, without
identification or attestation of the person who prepared it. Citing M. R. Evid. 201, Keefe
argues that the DOC' s parole eligibility deterrnination reflected in the calculations is
appropriate for judicial notice because the information is "capable of accurate and ready
verification." The State responds that the Court should not consider the calculations because
they are not part of the record before the District Court and have not been submitted with
proper verification.
The record on appeal "in all cases" comprises "the original papers and exhibits filed
in the district court, the transcript of proceedings, if any, and a certified copy of the docket
entries prepared by the clerk of the district court[.]" Mont. R. App. P. 8(1). "[T]his Court's
review of allegations on direct appeal is confined to the record." State v. Hendricks,
2003 MT 163, ¶ 15, 316 Mont. 296, 71 P.3d 1212 (quoting State v. Azure, 2002 MT 22, ¶ 38,
308 Mont. 201, 41 P.3 d 899). As the purported sentence calculations were not before the
District Court at the time of its resentencing hearing, they are not properly before the Court
in Keefe's appeal.
IT IS THEREFORE ORDERED that the Motion for Judicial Notice is DENIED. The
Clerk of this Court is directed to remove from the record on appeal the Declaration of
Genevie Gold and Exhibit A electronically submitted with Keefe's rnotion on
October 15, 2021.
The Clerk is dire ted further to notify all counsel of record of the entry of this Order.
Dated this e-- r day of November, 2021.
Chief Justice
(d-e 71-z,
e94 Justices
2