State v. S. Keefe

01/08/2021
DA 19-0368
Case Number: DA 19-0368
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 8STATE OF MONTANA,
Plaintiff and Appellee,
v.
STEVEN WAYNE KEEFE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADV 17-0076
Honorable Gregory G. Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John R. Mills (argued), Genevie Gold, Phillips Black, Inc., Oakland,
California
Elizabeth K. Ehret, Attorney at Law, Missoula, Montana
Alex R. Rate, ACLU of Montana, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown (argued),
Assistant Attorney General, Helena, Montana
Colleen E. Ambrose, Bureau Chief, Department of Corrections,
Helena, Montana
Joshua A. Racki, Cascade County Attorney, Great Falls, Montana
For Amici Montana Association of Criminal Defense Lawyers:
Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana
For Amici Juvenile Law Center:
Benjamin M. Darrow, Darrow Law PLLC, Missoula, Montana
Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania
Argued: September 11, 2020
Submitted: September 22, 2020
Decided: January 8, 2021
Filed:
Vir-6A.-if
__________________________________________
Clerk
2
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Steven Wayne Keefe (Keefe) appeals the May 6, 2019
Sentence, Order to Close File, and Order Exonerating Bond issued by the Eighth Judicial
District Court, Cascade County, which, in relevant part, re-sentenced him to life without
parole for three counts of deliberate homicide committed when he was a juvenile.1
¶2 We restate the issues on appeal as follows:
1. Whether the District Court’s failure to appoint Keefe his own expert violated
Keefe’s right to due process.
2. Whether there was sufficient evidence for the District Court to conclude Keefe
was irreparably corrupt and permanently incorrigible.
3. Whether the issue of whether Keefe was irreparably corrupt and permanently
incorrigible must be presented to a jury.
¶3 We affirm in part, reverse in part, and remand for a new sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On October 15, 1985, Keefe, then 17 years old, broke into a house near Great Falls
intending to commit a burglary. Once inside, he shot and killed three people—David J.
McKay, his wife Constance McKay, and their daughter Marian McKay Qamar. The next
day, Keefe was arrested on charges related to previous burglaries he had committed and
transferred to the Pine Hills School for Boys. While at Pine Hills, Keefe told other residents
he murdered three people while burglarizing a house near Great Falls. On March 21, 1986,
Keefe was charged with three counts of deliberate homicide for the murders of the McKay
1
We have amended the caption of this case to “more accurately reflect the actual alignment or
status” of the parties. M. R. App. P. 2(4).
3
family. The State amended the complaint on June 10, 1986, to add a burglary charge.
Keefe was bound over from Youth Court to stand trial before the District Court as an adult.
The matter went to trial in October 1986, and Keefe was ultimately convicted by the jury
on all counts on October 22, 1986.
¶5 The District Court sentenced Keefe to three consecutive life terms without the
possibility of parole at the Montana State Prison (MSP), with an additional ten years on
each count for use of a weapon, on the deliberate homicide convictions, as well as an
additional consecutive ten years, along with the ten-year enhancement for use of a weapon,
on the burglary charge—a total sentence of three consecutive life terms plus 50 years.
Keefe appealed his conviction to this Court in 1987, asserting the District Court erred by
admitting evidence of his other crimes. We affirmed his conviction in 1988. See State v.
Keefe, 232 Mont. 258, 759 P.2d 128 (1988).
¶6 On January 25, 2017, Keefe filed a petition for postconviction relief in the District
Court, asserting his 1986 sentence of life without the possibility of parole was
unconstitutional in light of the United States Supreme Court’s decisions in Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 577 U.S.
___, 136 S. Ct. 718 (2016). The Supreme Court’s decisions in Miller and Montgomery
collectively held that mandatory sentences of life without parole for juvenile offenders
were unconstitutional “for all but the rarest of children, those whose crimes reflect
‘irreparable corruption.’” Montgomery, 577 U.S. at ___, 136 S. Ct. at 726 (quoting Miller,
567 U.S. at 479-80, 132 S. Ct. at 2469). Montgomery held that Miller was to be applied
retroactively because Miller “announced a substantive rule of constitutional law,”
4
Montgomery, 577 U.S. at ___, 136 S. Ct. at 734, and those juveniles already sentenced to
life without parole “must be given the opportunity to show their crime did not reflect
irreparable corruption; and, if it did not, their hope for some years of life outside prison
walls must be restored.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 736-37. Proceedings
before the District Court in the present case were stayed while this Court considered, and
ultimately decided, Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313. In
Steilman, we held that the mandates of Miller and Montgomery “apply to discretionary
sentences in Montana.” Steilman, ¶ 3.
¶7 After this Court decided Steilman, the District Court lifted its stay on proceedings
and issued its Memorandum and Order Re: Petition for Postconviction Relief, which
determined Keefe must be resentenced in light of Miller, Montgomery, and Steilman
because the original sentencing hearing did not consider Keefe’s youth, background,
mental health, or substance abuse. Keefe filed several motions before resentencing.2
Relevant to the present proceeding, Keefe sought state funds for an expert and mitigation
2
The motions included: Motion to Proceed Ex Parte and Under Seal to Seek State Funds for Expert
and Mitigation Services; Motion for Jury Sentencing and Requiring a Finding Beyond a
Reasonable Doubt; Motion for Sentence Eligibility Finding Pursuant to Miller and Montgomery;
Motion to Exclude the Heinous or Senseless Aspects of the Crime to Support a Finding of
Irreparable Corruption; Motion to Apply Presumptive Sentencing; Motion to Strike Juveniles’
Eligibility for Life Without the Possibility of Parole in Light [of] MT’s Statute’s Failure to Limit
the Pool of Offenders Eligible for that Sentence; Motion to Categorically Exempt Juveniles from
Life Without the Possibility of Parole; Motion in Limine to Apply the Confrontation Clause, Limit
Prior Testimony, and to Exclude Evidence of Prior Bad Acts; and Renewed Ex Parte and Sealed
Motion for State Funds for Expert and Mitigation Services. While the District Court allowed
Keefe to proceed under seal and seek state funds for expert and mitigation services, the District
Court uniformly denied Keefe’s other motions in its January 15, 2019 Consolidated Order Denying
[Defendant]’s Motions.
5
services and sought a jury determination of whether he was “irreparably corrupt” beyond
a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348(2000). On December 13, 2018, the District Court issued its Consolidated Order Re: Expert
Testimony and Fees, which ordered the probation and parole office to perform an updated
presentence investigation and appointed Dr. Robert Page as an independent expert to
prepare a mental evaluation of Keefe as it determined the mental health information from
Keefe’s original sentencing was “outdated in light of the intervening decades’ advances in
the fields of psychology and neuroscience.” The District Court’s order directed Dr. Page
to consider, at a minimum:
1) The brain development of juveniles as a mitigating factor;
2) The effect of Keefe’s developmental experiences on his commission of
the crime;
3) An examination of Keefe’s mental health prior to and contemporaneously
with his commission of the crime;
4) An examination of Keefe’s chemical dependency history prior to and
contemporaneously with his commission of the crime; and
5) Any treatment recommendations related to Keefe’s rehabilitation.
The District Court denied Keefe’s motion for state funds to procure his own expert and his
motion for a jury to determine whether he was “irreparably corrupt” in its January 15, 2019
Consolidated Order Denying [Defendant]’s Motions.
¶8 The District Court held a resentencing hearing on April 18, 2019. At the hearing,
former Cascade County Sheriff’s Deputy James Bruckner, Montana Department of Justice
Department of Criminal Investigation Agent John Sullivan, Probation and Parole Officer
6
Tim Hides, Dr. Page, former MSP supervisor Robert Shaw, and former MSP Warden
James Mahoney testified. At the conclusion of the hearing, the District Court orally
resentenced Keefe to three consecutive life terms at MSP, along with an additional
consecutive 50 years for the burglary and weapons enhancements, without the possibility
of parole. The District Court’s written Sentence, Order to Close File, and Order
Exonerating Bond followed on May 6, 2019. On June 7, 2019, Keefe filed a Motion for
Reconsideration Before a New Judge, which the District Court denied with a written order
on June 11, 2019. Keefe appeals. Additional facts will be discussed as necessary below.
STANDARD OF REVIEW
¶9 Motions requesting an examination by a psychiatrist where the existence of a mental
disease or defect is not at issue fall within the discretion of the trial court, and we review
those decisions for an abuse of discretion. State v. Hill, 2000 MT 308, ¶ 21, 302 Mont.
415, 14 P.3d 1237 (citations omitted). An abuse of discretion occurs when a court acts
arbitrarily or unreasonably, resulting in substantial injustice. State v. Grimshaw, 2020 MT
201, ¶ 17, 401 Mont. 27, 469 P.3d 702 (citing State v. Holland, 2019 MT 128, ¶ 8, 396
Mont. 94, 443 P.3d 519).
¶10 This Court reviews criminal sentences for legality. State v. Yang, 2019 MT 266,
¶ 8, 397 Mont. 486, 452 P.3d 897 (citing State v. Coleman, 2018 MT 290, ¶ 4, 393 Mont.
375, 431 P.3d 26). We review a claim that a sentence violates the constitution de novo.
State v. Tam Thanh Le, 2017 MT 82, ¶ 7, 387 Mont. 224, 392 P.3d 607 (citation omitted).
“We review the district court’s findings of fact on which its sentence is based to determine
whether they are clearly erroneous.” State v. Hamilton, 2018 MT 253, ¶ 14, 393 Mont.
7
102, 428 P.3d 849 (citing State v. Shults, 2006 MT 100, ¶ 34, 332 Mont. 130, 136 P.3d
507).
¶11 We review de novo whether a district court violated a defendant’s constitutional
rights at sentencing. State v. Haldane, 2013 MT 32, ¶ 17, 368 Mont. 396, 300 P.3d 657(citations omitted).
DISCUSSION
¶12 This case involves the resentencing of Keefe for a triple homicide he committed
while a juvenile. For these murders, Keefe was sentenced to three consecutive life terms
without the possibility of parole. Keefe served approximately 30 years on his sentences
before filing his 2017 petition for postconviction relief. During the intervening years, the
U.S. Supreme Court issued several decisions which recognized the inherent differences
which must be considered by a court when sentencing a juvenile. In accordance with those
principles, the Supreme Court (1) banned the death penalty for juveniles in Roper v.
Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005); (2) banned life without parole for juvenile
offenders who committed a nonhomicide crime in Graham v. Florida, 560 U.S. 48, 130
S. Ct. 2011 (2010); (3) banned mandatory life without parole sentences for juveniles in
Miller; and (4) determined the substantive protections of Miller must be applied
retroactively in Montgomery.
¶13 The collective thrust of Supreme Court jurisprudence on this issue over the last
several years is a recognition that juveniles are “constitutionally different from adults in
their level of culpability,” and those differences must be considered by a sentencing court.
Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. Due to those differences, even juveniles
8
who commit heinous crimes, such as Keefe, cannot be sentenced to life without parole
unless they are “irreparably corrupt” and “permanently incorrigible” as such a punishment
would violate the Eighth Amendment’s ban on “cruel and unusual punishments.” U.S.
Const., Amend. VIII; see also Mont. Const. art. II, § 22 (“Excessive bail shall not be
required, or excessive fines imposed, or cruel and unusual punishments inflicted.”). With
these heady constitutional principles in mind, we turn now to Keefe’s appeal of the District
Court’s order which resentenced him to life without parole for the three homicides he
committed while a juvenile.
¶14 1. Whether the District Court’s failure to appoint Keefe his own expert violated
Keefe’s right to due process.
¶15 Keefe was initially represented in his petition for postconviction relief, pro bono, by
private counsel. He then entered into an agreement with the Office of Public Defender
(OPD), whereby OPD would represent him, with his original counsel continuing as
contract counsel for OPD. Keefe sought state funds to hire a mitigation expert, a forensic
psychiatrist, an adaptive functioning expert, a substance abuse expert, and a psychologist.
The District Court, who had already appointed Dr. Page as an independent expert to
examine Keefe, denied Keefe’s motion. Dr. Page assessed Keefe, produced a written
report, and testified at the resentencing hearing.
¶16 Keefe appeals, asserting he had a constitutional right to the appointment of such
experts to aid his defense pursuant to the Supreme Court’s decision in Ake v. Oklahoma,
470 U.S. 68, 105 S. Ct. 1087 (1985). The State argues Ake is inapplicable to Keefe’s
resentencing proceeding because Keefe does not have a constitutional right to a psychiatrist
9
to aid in his defense when his sanity is not at issue. We agree with the State on this issue
and conclude Ake is not implicated by the resentencing proceeding here.
¶17 In Ake, the Supreme Court held
that when a defendant demonstrates to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense. This is not to say, of course, that the indigent
defendant has a constitutional right to choose a psychiatrist of his personal
liking or to receive funds to hire his own. Our concern is that the indigent
defendant have access to a competent psychiatrist for the purpose we have
discussed, and as in the case of the provision of counsel we leave to the States
the decision on how to implement this right.
Ake, 470 U.S. at 83, 105 S. Ct. at 1096. This Court has previously recognized that “[t]he
Supreme Court’s holding in Ake applies only upon a preliminary showing that the
defendant’s sanity will be an issue at trial.” Hill, ¶ 25 (citing Ake, 470 U.S. at 74, 105 S. Ct.
at 1091-92). The Supreme Court has further clarified when Ake is applicable: (1) the
defendant must be indigent; (2) the defendant’s mental condition must be relevant to the
punishment he might suffer; and (3) the defendant’s sanity at the time of the offense must
be in question. McWilliams v. Dunn, 582 U.S. ___, ___, 137 S. Ct. 1790, 1798 (2017)
(citations omitted). If Ake’s threshold criteria are met, “a State must provide a mental
health professional capable of performing a certain role: ‘conduct[ing] an appropriate
examination and assist[ing] in evaluation, preparation, and presentation of the defense.’”
McWilliams, 582 U.S. at ___, 137 S. Ct. at 1794 (quoting Ake, 470 U.S. at 83, 105 S. Ct.
at 1096).
10
¶18 In this case, the threshold criteria of Ake are not met, and therefore Keefe was not
entitled to his own team of experts to assist in his defense before resentencing. While
Keefe was indigent, and his youthful mental condition was relevant to determining whether
he was “irreparably corrupt” and “permanently incorrigible,” Keefe’s sanity has never been
at issue—either at Keefe’s original trial and sentencing or at resentencing. In addition, the
District Court appointed Dr. Page to examine Keefe as an independent, neutral expert and
the Supreme Court has declined to answer whether “a State must provide an indigent
defendant with a qualified mental health expert retained specifically for the defense team,
not a neutral expert available to both parties.” McWilliams, 582 U.S. at ___, 137 S. Ct. at
1799.
¶19 Dr. Page conducted an independent and neutral examination of Keefe prior to the
resentencing hearing. Dr. Page also testified at the resentencing hearing, where he was
questioned by the District Court as well as counsel for both the State and Keefe. Dr. Page,
though he declined to determine whether Keefe was in fact “rehabilitated,” testified
favorably to Keefe in several regards. He noted Keefe’s turbulent upbringing and juvenile
rebelliousness, but noted—after Keefe’s initial struggles and continued lawlessness in his
first years in prison—that Keefe “has matured through the process of his incarceration”
and acquired an effective work ethic; has not displayed proneness toward aggression or
violence; completed beneficial therapeutic programs; and shows respect for authority and
follows the rules. Dr. Page concluded Keefe had “a relatively low risk to commit future
acts of violence” as long as Keefe remained supervised and recommended a gradual
reintroduction to society if he was granted parole. Overall, Dr. Page’s testimony was
11
favorable to Keefe as he found Keefe had a low risk to reoffend and could be reintegrated
into society if granted parole.
¶20 Keefe’s right to due process was not violated by the District Court appointing Dr.
Page as a neutral expert to examine him, because Ake is not applicable to the present case.
Dr. Page’s independent examination satisfied due process requirements, and the State was
not required to provide Keefe with a team of experts to assist with his defense at
resentencing.
¶21 2. Whether there was sufficient evidence for the District Court to conclude Keefe
was irreparably corrupt and permanently incorrigible.
¶22 “The Miller Court outlined five factors of mandatory sentencing schemes that
prevent the sentencer from considering youth and from assessing whether the law’s
harshest term of imprisonment proportionately punishes a juvenile offender.” Steilman,
¶ 16 (citation and internal quotation marks omitted).
Mandatory life without parole for a juvenile [1] precludes consideration of
his chronological age and its hallmark features--among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. [2] It prevents
taking into account the family and home environment that surrounds him—
and from which he cannot usually extricate himself—no matter how brutal
or dysfunctional. [3] It neglects the circumstances of the homicide offense,
including the extent of his participation in the conduct and the way familial
and peer pressures may have affected him. [4] Indeed, it ignores that he
might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability to deal
with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. And [5] finally, this mandatory
punishment disregards the possibility of rehabilitation even when the
circumstances most suggest it.
Miller, 567 U.S. at 477-78, 132 S. Ct. at 2468 (internal citations and quotations omitted).
In Steilman, we held that “Miller’s substantive rule requires Montana’s sentencing judges
12
to adequately consider the mitigating characteristics of youth set forth in the Miller factors
when sentencing juvenile offenders to life without the possibility of parole[.]” Steilman,
¶ 17.
¶23 Miller did not categorically bar life without parole as a punishment for juvenile
offenders. “Miller did bar life without parole, however, for all but the rarest of juvenile
offenders, those whose crimes reflect permanent incorrigibility.” Montgomery, 577 U.S.
at ___, 136 S. Ct. at 734. “Because juveniles have diminished culpability and greater
prospects for reform,” the Supreme Court has explained, “‘they are less deserving of the
most severe punishments.’” Miller, 567 U.S. at 471, 132 S. Ct. at 2464 (quoting Graham,
560 U.S. at 68, 130 S. Ct. at 2026). As Montgomery noted, the Miller Court explained
three significant gaps between juveniles and adults:
First, children have a “lack of maturity and an underdeveloped sense of
responsibility,” leading to recklessness, impulsivity, and heedless
risk-taking. Second, children “are more vulnerable to negative influences and
outside pressures,” including from their family and peers; they have limited
“control over their own environment” and lack the ability to extricate
themselves from horrific, crime-producing settings. And third, a child’s
character is not as “well formed” as an adult’s; his traits are “less fixed” and
his actions less likely to be “evidence of irretrievable depravity.”
Montgomery, 577 U.S. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 471, 132 S.
Ct. at 2464).
¶24 At the resentencing hearing, and in its written Sentence, Order to Close File, and
Order Exonerating Bond, the District Court noted that it believed it was “improper” to
consider whether Keefe had rehabilitated in prison and that there was “no legal support”
for the notion that a juvenile offender, such as Keefe, who was being resentenced after
13
originally being sentenced to life without parole could have his post-offense conduct
considered at sentencing.3 The District Court therefore disregarded the substantial
evidence of Keefe’s rehabilitation in the 30-plus years since the homicides. Because of
this disregard for evidence of rehabilitation, Keefe’s resentencing hearing did not comply
with the mandates of Miller and Montgomery by concluding Keefe was “irreparably
corrupt” and “permanently incorrigible” without fully considering relevant evidence.
¶25 The State argues the District Court did adequately consider the Miller factors at
resentencing, but we are not persuaded by this argument in light of the District Court’s
explicitly stated conclusion that it would not consider evidence of Keefe’s post-offense
rehabilitation. If a district court fails to adequately consider any of the Miller factors, a
remand for resentencing is appropriate. In this case, to conclude the District Court erred,
we need only consider the fifth Miller factor: “the possibility of rehabilitation even when
the circumstances most suggest it.” Miller, 567 U.S. at 478, 132 S. Ct. at 2468.
¶26 As a preliminary matter, we note the appearance of impropriety created by the
District Court setting a four-hour sentencing hearing, and then, at the start of that hearing,
notifying the parties they only had three hours to present their cases because the District
Court would need an hour to read its findings and ruling. While this is not conclusive
3
While the District Court allowed Keefe to present evidence regarding his post-offense
rehabilitation in prison at the resentencing hearing, it specifically declined to consider the positive
evidence of rehabilitation presented. As discussed below, the District Court did consider evidence
of negative behaviors by Keefe after he committed the homicides. Justice McKinnon’s Dissent
similarly considers the evidence of negative post-offense conduct as relevant to the possibility of
rehabilitation, but disclaims the relevance of the undisputed evidence of Keefe’s rehabilitation in
the years since the offenses. Dissent, ¶ 63. All post-offense conduct—good and bad—should be
considered when resentencing for an offense committed as a juvenile. Such did not occur here.
14
evidence the District Court had pre-judged the matter, at a minimum it gives the appearance
of impropriety and should be avoided.
¶27 At the resentencing hearing, and in his report, Dr. Page testified extensively about
Keefe’s prospects of rehabilitation. As noted above, while Dr. Page declined to
conclusively determine whether Keefe had been, or could be, “rehabilitated” as a
philosophical matter, he did testify to Keefe’s maturation over his lengthy period of
incarceration. Dr. Page concluded that “[e]mpirically measured differences between
Keefe’s psychological profile at the age of 17 and his current profile at the age of 51, along
with research in the area of neuropsychological development and maturation are consistent
in suggesting that he has responded to efforts at rehabilitation over a 33 year period of
incarceration.” Dr. Page found Keefe could succeed outside of prison and was a different
person now than he was when he committed the triple homicide in 1985. The Miller and
Montgomery holdings, in essence, establish a presumption against life without parole
sentences for juveniles unless they are “irreparably corrupt” or “permanently incorrigible.”
Here, the District Court concluded Keefe to be “irreparably corrupt” and “permanently
incorrigible” without considering the unrebutted evidence of Dr. Page and former MSP
supervisor Shaw and Warden Mahoney that Keefe has in fact matured and made progress
towards rehabilitation and that he could be successful outside of prison.
¶28 The State argues that the District Court did not have to consider post-offense
evidence of rehabilitation, and that, even if it did, Keefe has not shown rehabilitation.4 The
4
The Dissent appears to agree with the State on this point, claiming—in spite of the District
Court’s statements it would not consider post-offense evidence of rehabilitation—that the District
15
District Court, and the State, both clearly agreed that it was proper to consider Keefe’s
post-offense behavior when that behavior was negative, such as his early history of
disciplinary infractions at the prison. The State, and the District Court, repeatedly made
mention of, and gave weight to, tattoos Keefe has gotten while incarcerated as evidence of
a lack of remorse. On the whole, the District Court clearly considered post-offense
evidence when resentencing Keefe. It simply chose to disregard the rehabilitation evidence
presented.5
¶29 While not binding on this Court, we find the Ninth Circuit’s decision in United
States v. Briones, 929 F.3d 1057 (9th Cir. 2019) (en banc), instructive on the issue of
whether it is proper for a court resentencing a juvenile serving a sentence of life without
parole to consider post-offense rehabilitation. In Briones, the Ninth Circuit stated:
The eighteen years that passed between the original sentencing hearing and
the resentencing hearing provide a compelling reason to credit the sincerity
of Briones’s efforts to rehabilitate himself. Briones was sentenced in 1997;
Miller was not issued until 2012. Thus, for the first fifteen years of Briones’s
incarceration, his [life without parole] sentence left no hope that he would
ever be released, so the only plausible motivation for his spotless prison
Court “considered the prospects of rehabilitation at the time of Keefe’s original sentencing and at
his resentencing[.]” Dissent, ¶ 65. Under the logic presented by the Dissent, Keefe’s resentencing
hearing was all for show, particularly when the District Court specifically declined to consider the
undisputed post-offense rehabilitation evidence presented. This imbalance is clearly
constitutionally impermissible as only those youthful offenders who are “irreparably corrupt” and
“permanently incorrigible” may be sentenced to life without parole. Retroactively labeling an
offender who has rehabilitated to be “irreparably corrupt” and “permanently incorrigible” based
on the severity of his crimes while ignoring those labels are inaccurate violates the protections of
Miller and Montgomery.
5
The Dissent, in finding the District Court did consider Keefe’s post-offense rehabilitation
evidence, appears to confuse the undisputed fact the District Court heard the evidence with the
undisputed fact the District Court specifically stated it refused to consider that evidence and was
under no legal authority to do so.
16
record was improvement for improvement’s sake. This is precisely the sort
of evidence of capacity for change that is key to determining whether a
defendant is permanently incorrigible, yet the record does not show that the
district court considered it. This alone requires remand.
Briones, 929 F.3d at 1066-67 (emphasis in original). Here, Keefe was sentenced in 1986—
26 years before Miller was decided. It is undisputed that Keefe struggled and continued to
act out in his early years at the prison, but had begun to mature and rehabilitate
approximately two decades before the Supreme Court issued Miller. Though the State and
the District Court insinuated Keefe’s lack of trouble at the prison over the last several years
was solely due to the advice of counsel and hope for release provided by Miller, such an
insinuation is unfounded based upon our review of the record. Keefe’s last infractions
came years before both Miller was decided and years before he ever met his counsel. At
the time Keefe began making efforts to rehabilitate himself and stopped committing
infractions at the prison, he had no hope of being released and was only making
improvement for improvement’s sake. Dr. Page testified to his improvement over the
years, and so did two MSP employees who knew Keefe for years—former MSP supervisor
Shaw and former MSP Warden Mahoney. “This is precisely the sort of evidence of
capacity for change that is key to determining whether a defendant is permanently
incorrigible[.]” Briones, 929 F.3d at 1067 (emphasis in original). Unlike Briones, where
the record showed the district court failed to consider post-offense rehabilitation evidence,
the record here shows the District Court explicitly refused to consider such evidence.
¶30 “If subsequent events effectively show that the defendant has changed or is capable
of changing, [a sentence of life without the possibility of parole] is not an option.” Briones,
17
929 F.3d at 1067 (emphasis in original). We agree with the Briones court that post-offense
evidence of rehabilitation is clearly required to be considered by a court resentencing a
juvenile who is serving a sentence of life without parole. Because Miller commands a
resentencing court to consider “the possibility of rehabilitation” before a juvenile can
lawfully be sentenced to life without parole, evidence of rehabilitation in the years since
the original crime must be considered by the resentencing court. This is consistent with
the sentencing policy of Montana which does not merely provide for punishment,
protection of the public, and restitution, but also for rehabilitation and reintegration of
offenders back into the community:
The correctional and sentencing policy of the state of Montana is to:
(a) punish each offender commensurate with the nature and degree of harm
caused by the offense and to hold an offender accountable;
(b) protect the public, reduce crime, and increase the public sense of safety
by incarcerating violent offenders and serious repeat offenders;
(c) provide restitution, reparation, and restoration to the victim of the offense;
and
(d) encourage and provide opportunities for the offender’s self-improvement
to provide rehabilitation and reintegration of offenders back into the
community.
Section 46-18-101(2), MCA (emphasis added). Sentencing practices must permit judicial
discretion to consider aggravating and mitigating circumstances including any “fact that
exists in mitigation of the penalty.” Section 46-18-304(2), MCA.6 At the time of
6
While this statute specifically refers to the death penalty, the Supreme Court in Miller “imported
the Eighth Amendment requirement ‘demanding individualized sentencing when imposing the
death penalty’ into the juvenile conviction context, holding that ‘a similar rule should apply when
18
sentencing or resentencing, the court applies the sentencing policy considering all of the
aggravating and mitigating circumstances existing at the time of sentencing. The
sentencing court must take into account aggravating circumstances—such as the nature and
severity of the offenses here—and mitigating circumstances—including all of the Miller
factors which include rehabilitation success shown to have occurred by the time of
sentencing. Section 46-18-101(3)(d); see also Miller, 567 U.S. at 489, 132 S. Ct. at 2475(holding a sentencing judge “must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles”). In this case,
that did not happen and the District Court did not “adequately consider the mitigating
characteristics of youth set forth in the Miller factors[.]” Steilman, ¶ 17. By refusing to
consider post-offense evidence of rehabilitation, the District Court violated Keefe’s
constitutional rights at the resentencing hearing. Accordingly, Keefe is entitled to a new
resentencing hearing which appropriately considers the Miller factors.7
¶31 We note here the trauma the McKay family has endured as a result of Keefe’s
offenses and are mindful the reopening of this case 34 years later has been emotionally
difficult. We sincerely wish the District Court had avoided the path it took and had rather
a juvenile confronts a sentence of life (and death) in prison.’” Campbell v. Ohio, ___ U.S. ___,
138 S. Ct. 1059, 1060 (2018) (Sotomayor, J., respecting the denial of certiorari) (quoting Miller,
567 U.S. at 475, 477, 132 S. Ct. at 2467, 2468).
7
While the Chief Justice’s Concurrence and Dissent raises additional important constitutional
issues involving the interplay of Article II, Section 15, and Article II, Section 22, of the Montana
Constitution, such are not squarely before us. The constitutionality issues as raised and analyzed
in the Chief Justice’s Concurrence and Dissent were not presented and addressed at the district
court level. On remand, the parties are free to raise these issues before the District Court where it
can squarely address them.
19
fairly and objectively considered the Miller factors including the uncontested evidence of
Keefe’s rehabilitation progress. While we do not take this decision lightly, we are bound
to uphold the constitutional rights of juvenile defendants—even those who commit the
most severe offenses. Because the 2019 resentencing hearing did not do so, it must be
vacated and remanded for resentencing in accordance with this opinion.
¶32 3. Whether the issue of whether Keefe was irreparably corrupt and permanently
incorrigible must be presented to a jury.
¶33 Although we have determined the District Court erred in determining Keefe was
“irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that
basis, we must address whether the issue of the irreparable corruption of a minor is a fact
which must be found by a jury. Keefe has argued, pursuant to Apprendi, that he is
constitutionally entitled to have a jury determine whether he is, in fact, “irreparably
corrupt” before a possible life without parole sentence. We disagree.
¶34 “Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. In Steilman,
we “conclude[d] that Miller’s substantive rule requires Montana’s sentencing judges to
adequately consider the mitigating characteristics of youth set forth in the Miller factors
when sentencing juvenile offenders to life without the possibility of parole[.]” Steilman,
¶ 17 (emphasis added).
¶35 As noted above, the Supreme Court has not categorically barred the punishment of
life without parole for juvenile offenders, but “did bar life without parole, however, for all
20
but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. Here, neither “irreparable corruption” nor
“permanent incorrigibility” are facts which could increase a possible sentence. Rather,
youth is a mitigating factor which can reduce the possible sentence for deliberate homicide
in Montana. In accordance with Miller and Steilman, a jury is not required to determine
irreparable corruption and permanent incorrigibility—that determination is properly left to
the resentencing judge.
CONCLUSION
¶36 The District Court did not err when it appointed a neutral expert for the resentencing
hearing or when it denied Keefe’s request for a jury to determine whether he was
“irreparably corrupt” and “permanently incorrigible.” The District Court did err, however,
when it found Keefe to be “irreparably corrupt” and “permanently incorrigible” after the
sentencing hearing as it failed to consider Miller factors including undisputed evidence of
rehabilitation progress. Keefe is therefore entitled to a new resentencing hearing.
¶37 Affirmed in part, reversed in part, and remanded for a new resentencing hearing.
/S/ INGRID GUSTAFSON
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
21
Chief Justice Mike McGrath, concurring and dissenting.
¶38 I concur with the majority Opinion insofar as it reverses the District Court’s
resentencing. However, I dissent to the majority’s decision to remand to the District Court
for yet another sentencing. Moreover, in my view, the Montana Constitution and the
rationales underlying the Miller and Montgomery decisions warrant stronger protection for
youthful defendants facing a lifetime in prison.
¶39 Growing understanding of the psychology and brain development of young people
has led the United States Supreme Court to acknowledge that the biological effects of youth
include a “lack of maturity and an underdeveloped sense of responsibility” and demand
special constitutional protections in criminal sentencing. See Roper v. Simmons, 543 U.S.
551, 569, 125 S. Ct. 1183, 1195 (2005) (quotation omitted) (holding death penalty for
juvenile offenders unconstitutional); Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011,
2026 (2010) (holding life without parole sentences for juvenile offenders in nonhomicide
cases unconstitutional). The Court has built on these holdings to recognize that juveniles
are “constitutionally different from adults for purposes of sentencing,” Miller v. Alabama,
567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012), as they bear “diminished culpability and
greater prospects for reform.” Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016)
(quotation omitted). These considerations “diminish the penological justifications for
imposing” a mandatory life without parole sentence, rendering such sentences
disproportionate under the Eighth Amendment’s ban on cruel and unusual punishment.
Miller, 567 U.S. at 472-73, 132 S. Ct. at 2465-66. According to the United States Supreme
Court, life without parole for homicide crimes committed by juveniles can be imposed only
22
in “exceptional circumstances” upon the rare juvenile whose crime reflects “permanent
incorrigibility” or “irreparable corruption.” Montgomery, 136 S. Ct. at 734, 736 (citing
Miller, 567 U.S. at 479-80, 132 S. Ct. at 2469).
¶40 The Miller and Montgomery holdings, in my view, are properly interpreted as
establishing a presumption against life without parole sentences for juveniles that can be
overcome only by a finding, supported by competent evidence, that the juvenile is “entirely
unable to change” with “no possibility” of rehabilitation. See Commonwealth v. Batts, 163
A.3d 410, 435, 452 (Pa. 2017) (citing Montgomery, 136 S. Ct. at 733); see generally Alice
Reichman Hoesterey, Juvenile (In)Justice: Confusion in Montgomery’s Wake: State
Responses, the Mandates of Montgomery, and why a Complete Categorical Ban on Life
without Parole for Juveniles Is the Only Constitutional Option, 45 Fordham Urb. L.J. 149,
175-77 (2017). The Montgomery Court repeatedly admonished that life without parole
must be a “rare” sentence for juvenile offenders, unconstitutional in the “vast majority” of
juvenile homicide cases and justifiable only in “exceptional circumstances.” Montgomery,
136 S. Ct. at 726, 733-34, 736. Miller and Montgomery’s central reasoning is that the lack
of maturity and impulse control that are characteristic of youth render such offenders both
less culpable and less fixed than fully matured adults. Miller, 567 U.S. at 471-72, 132
S. Ct. at 2464-65 (elaborating how juvenile and adult minds are fundamentally distinct, in
particular in the “‘parts of the brain involved in behavior control’” (quoting Graham, 560
U.S. at 68, 130 S. Ct. at 2026)); Montgomery, 136 S. Ct. at 733. These conclusions
essentially establish an empirical presumption against life without parole sentences for
juvenile offenders.
23
¶41 Furthermore, the Miller Court noted that identifying the rare permanently
incorrigible youth can only be done with “great difficulty” and that youthful defendants are
already at a disadvantage when attempting to navigate the criminal justice system. Miller,
567 U.S. at 477-79, 132 S. Ct. at 2468-69 (citations omitted). The upshot of this reasoning
is that the constitutional protections put forth in Miller and Montgomery cannot allow
vulnerable young defendants facing a lifetime in prison to be saddled with the burden of
establishing the nearly unprovable, but very likely correct, proposition that they are not
among the exceedingly rare number of youths who are truly permanently incorrigible.
¶42 Here, the State did not overcome what in essence is the presumption against a life
without parole sentence for a juvenile offender with evidence proving that Keefe was
among the exceptionally few irreparably corrupt youthful offenders. To the contrary,
unrebutted evidence showed that Keefe was quite capable of rehabilitation. Dr. Page’s
evaluation and testimony demonstrated that Keefe had matured during incarceration from
an uncompassionate youth exhibiting “characteristic carelessness and antisocial acts” to a
51-year-old with an “effective work ethic” and no “demonstrated proneness towards
aggression or violence.” Dr. Page concluded that Keefe now had a relatively low risk to
commit future acts of violence and could be reintegrated into society if granted parole.
¶43 Furthermore, the Montana Constitution’s explicit protections for juveniles should
compel this Court to go further and conclude that all life without parole sentences are per se
unconstitutional for juvenile offenders. In Graham, the United States Supreme Court held
that life without parole sentences for juvenile offenders are per se unconstitutional for
nonhomicide cases. Graham, 560 U.S. 48, 130 S. Ct. 2011. It considered, but rejected, a
24
case-by-case approach like the one the majority here directs the District Court to undertake.
See Graham, 560 U.S. at 78, 130 S. Ct. at 2032. The Graham Court found that predictions
of juvenile development were too error prone, that sentencing courts faced with brutal
crimes would give insufficient weight to the mitigating factors of youth, that youthful
offenders are inherently less culpable and more disadvantaged in criminal proceedings than
adults, and that, ultimately, the only reliable way to discover whether a juvenile has the
potential to reform is to afford the individual the opportunity to demonstrate as much.
Graham, 560 U.S. at 77-79, 130 S. Ct. at 2032-33. This reasoning is equally applicable to
homicide crimes, as Keefe’s case demonstrates and as the Miller Court went on to
acknowledge. Miller, 567 U.S. at 473, 132 S. Ct. at 2465 (“[While] Graham’s flat ban on
life without parole applied only to nonhomicide crimes . . . . none of what it said about
children . . . is crime-specific.”); see generally Hoesterey, supra, at 185-88. While the
United States Supreme Court declined to consider whether the United States Constitution
required extending the per se ban on juvenile life without parole sentences to homicide
cases, Miller, 567 U.S. at 479, 132 S. Ct. at 2469, the heightened protections for juveniles
found in the Montana Constitution should compel this Court to adopt the reasoning laid
out in Graham here.
¶44 The federal Bill of Rights is by and large a restraint on governmental power,
forbidding the federal government from, for example, establishing a religion, conducting
unreasonable searches and seizures, or taking private property without just compensation.
See U.S. Const. amends. I, IV, V. In contrast, Article II of the Montana Constitution
contains a Declaration of Rights provided to individuals. Relevant here, Article II, Section
25
22, of the Montana Constitution protects all Montana citizens from cruel and unusual
punishments while Article II, Section 15, of the Montana Constitution specifically grants
all fundamental rights enjoyed by adults to persons under age eighteen, but, moreover,
encourages laws which enlarge the protections of youth.
¶45 As noted above, the United States Supreme Court has already found that a sentence
of life without parole for juveniles implicates the proportionality element of the prohibition
on cruel and unusual punishments. In the Montana charter, the right of youthful offenders
to be free of such punishments is magnified by the special constitutional consideration
afforded to juveniles.
¶46 Article II, Section 15, of the Montana Constitution provides:
Rights of persons not adults. The rights of persons under 18 years of age
shall include, but not be limited to, all the fundamental rights of this Article
unless specifically precluded by laws which enhance the protection of such
persons.
¶47 During the 1972 Constitutional Convention debate, the discussion of Section 15
clearly emphasized the importance of protecting juveniles under the new Constitution.
Delegate Monroe, the committee chair and sponsor of the provision, stated
What this section is attempting to do is to help young people to reach their
full potential. Where juveniles have rights at this time, we certainly want to
make sure that those rights and privileges are retained; and whatever rights
and privileges might be given to them in the future, we also want to protect
them.
Montana Constitutional Convention, Verbatim Transcript, March 8, 1972, Vol. V, p. 1750.
¶48 Delegate Monroe went on: “It seems to me that Montana can be the leader among
all the states in recognizing the rights of people under the age of majority.” Montana
26
Constitutional Convention, Verbatim Transcript, March 8, 1972, Vol. V, p. 1750. The
provision was adopted with overwhelming delegate support. Montana Constitutional
Convention, Verbatim Transcript, March 8, 1972, Vol. V, pp. 1752-53.
¶49 Delegate Monroe also noted that Section 15 provided that, “[i]n such cases where
the protection of the special status of minors demands it, exceptions can be made on clear
showing that such protection is being enhanced.” Montana Constitutional Convention,
Verbatim Transcript, March 8, 1972, Vol. V, p. 1750. Imposition of a punishment that
denies an individual any hope of life outside prison walls is a case where the special status
of minors demands the enhancement of their protection.
¶50 These constitutional principles warn against condemning a youth to spend a lifetime
behind bars based on nothing more than a sentencing court’s apparent ability to divine the
young individual’s supposed “irreparable” or permanently “incorrigible” nature.
Predicting the development of a teenager and the prognosis for rehabilitation, as suggested
by Montgomery and Miller, is a tall order, if not an impossible task.1 Asking a court, based
on professional opinion, to determine whether a teenager is irreparably corrupt or
permanently incorrigible seems more like the quest for the Holy Grail than a
scientifically-based inquiry. Or, given the severe consequences at hand, perhaps medieval
methods for determining whether a defendant is a witch are more appropriate analogies to
the nature of such an inquiry.
1
These terms are no more useful to a prognosticator than the mostly abandoned term: a child
“with a malignant heart.”
27
¶51 The District Court’s erroneous attempt to resentence 51-year-old Keefe by reaching
back in time to forecast 17-year-old Keefe’s prospects for rehabilitation from the time of
the offense, all the while ignoring actual indicators of success in subsequent decades, aptly
demonstrates the futility of engaging in such prognosticating in the first place. The
evidence presented at the resentencing demonstrated that the violent, anti-social traits of
17-year-old Keefe had little to no bearing on the character traits of the fully-matured Keefe
several decades later. At the time of the offense, an observer may have reasonably thought
Keefe to be beyond hope of rehabilitation, a conclusion apparently adopted by the District
Court at resentencing.
¶52 However, evidence presented at Keefe’s resentencing revealed that such an observer
would have been proven wrong in the intervening decades. This dissonance aptly
demonstrates that predicting an adolescent’s potential for rehabilitation is risky business.
The District Court’s exercise was analogous to standing among drought-parched crops
while ruefully reviewing a Farmer’s Almanac predicting a wet growing season. Important
constitutional interests of this nature cannot be subject to the outcomes of such doubtful
prophesying.
¶53 Even if judicial predictions of teenage incorrigibility were not so dubious, life
without parole would still be an inappropriate sentence for a youthful offender. The Miller
decision acknowledged that the defining characteristics of youthfulness, in and of
themselves, “diminish the penological justifications for imposing” a life without parole
sentence. Miller, 567 U.S. at 472-73, 132 S. Ct. at 2465. In essence, juvenile status itself,
regardless of the application of the Miller factors, is inherently at odds with such a sentence
28
under accepted rationales for punishing members of society. Under Montana law,
offenders are sentenced in order to inflict punishment proportionate with the crime, protect
the public, restore victims, and encourage rehabilitation and reintegration of the offender
into society. Section 46-18-101(2), MCA. As a juvenile offender, Keefe has “diminished
culpability,” Montgomery, 136 S. Ct. at 733, rendering the severest punishments
disproportionate. Dr. Page indicated that Keefe has matured while incarcerated in a way
that is consistent with a successful response to rehabilitation efforts and that Keefe could
be released with relatively low risk to society. Whether his sentence was imposed for the
purposes of punishment, the protection of society, or rehabilitation,2 Keefe has served his
time and these ends have been reached. The denial of parole eligibility to a youthful
offender such as Keefe serves no further legitimate penological purpose.
¶54 I recognize there are many situations where young people, by virtue of the crimes
they commit and other pertinent circumstances, should be treated by the court system as
adults. Our juvenile courts are not adequate for all cases, including the present one.
However, Miller and Montgomery—as well as the Montana Constitution’s special
protection for juveniles—require that the analysis does not end there but, instead, recognize
the special constitutional status of adolescents. The courts have recognized that status as
it relates to the development of young people under the age of majority for many years.
See, e.g., In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967). It is time to recognize that our
Constitution has granted even greater protections in this regard.
2
Sadly, not even a sentence of life without parole can restore the victims of this horrific crime.
29
¶55 This Court has, prior to the Miller decision, ordered a district court, on remand, to
strike a 60-year parole restriction for a crime committed by a juvenile. State v.
Olivares-Costar, 2011 MT 196, 361 Mont. 380, 259 P.3d 760. I agree with the majority
to remand this case to the District Court. While I would strike the “without parole”
provision of the sentence, given the necessity of providing the District Court with a
majority Opinion, I acknowledge that the District Court has discretion to conduct a new
hearing.
/S/ MIKE McGRATH
Justice Dirk Sandefur specially concurring in part and dissenting in part.
¶56 I concur with the Court’s holdings that, in reviewing Keefe’s life sentence without
parole for compliance with the Eighth Amendment to the United States Constitution, the
District Court did not erroneously fail, in light of the manifest absence of a sufficient
showing of resulting prejudice, to appoint an expert to unilaterally assist him in lieu of an
independent expert report to the court, and that Keefe had no constitutional right to have a
jury determine the ultimate constitutional question of whether he is irreparably corrupt and
incorrigible. I further concur that the District Court erroneously failed to consider evidence
of Keefe’s post-sentencing rehabilitation under the unique procedural circumstances of this
case and, based on that evidentiary error, with the Court’s ultimate reversal of the District
Court’s reimposition of a life sentence without possibility of parole.
30
¶57 I would squarely hold, as the Majority essentially does, that Miller and Montgomery
effectively established an Eighth Amendment presumption that life in prison without
possibility of parole is cruel and unusual punishment, as applied to juvenile offenders,
absent an affirmative evidentiary showing by the state, and corresponding finding by the
sentencing court, that the juvenile offender is irreparably corrupt and incorrigible. I also
concur with the special concurrence of Chief Justice McGrath, and would so further hold,
that the cited provisions of the Montana Constitution effect a similar Montana
constitutional presumption regarding juvenile offenders, independent of the United States
Constitution.
¶58 I would thus more specifically hold that, regardless of the evidentiary error noted
by the Majority, the State failed to meet its burden, on the extraordinary Eighth
Amendment review warranted in this particular case, of presenting sufficient evidence to
affirmatively overcome the Eighth Amendment and independent Montana constitutional
presumptions that life in prison without possibility of parole is cruel and unusual
punishment of a juvenile offender. I would therefore ultimately hold that the District Court
erroneously reimposed an unconstitutional life sentence without possibility of parole on a
juvenile offender. However, rather than remanding for resentencing, I would merely
remand for entry of an amended judgment striking and excluding the offending parole
eligibility restriction.
¶59 A sentence or sentencing provision that contravenes a constitutional right or
exceeds, or does not comply with, a governing statutory authorization or limitation is
illegal. See State v. Olivares-Coster, 2011 MT 196, ¶¶ 18-22, 361 Mont. 380, 259 P.3d
31760; State v. Garrymore, 2006 MT 245, ¶¶ 149-50, 334 Mont. 1, 145 P.3d 946.1 If an
illegal sentence or sentencing provision is correctable other than by merely striking the
illegal portion of the sentence, then the proper remedy for correcting the illegality is remand
for resentencing. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087.
However, if correctable by striking the illegality from the original sentence without
affecting the balance of the sentence, the proper remedy is reversal and remand with
instruction for entry of an amended judgment striking and excluding the illegality.
Heafner, ¶¶ 11-12.
¶60 In Heafner, upon sentencing the defendant to concurrent prison terms for
accountability to aggravated burglary, accountability to aggravated assault, and witness
tampering, the district court illegally imposed various conditions of supervision in the event
of parole. Heafner, ¶¶ 3 and 6. Rejecting the State’s assertion that remand for resentencing
was the proper remedy, we reversed and remanded for entry of an amended judgment
striking and excluding the illegal parole conditions. Heafner, ¶¶ 8 and 11-13.2 See also
State v. Lehrkamp, 2017 MT 203, ¶¶ 37-41, 388 Mont. 295, 400 P.3d 697 (reversing and
remanding for an amended judgment striking parole conditions not included in the oral
pronouncement of judgment).
1
But see State v. Beaudet, 2014 MT 152, ¶ 17, 375 Mont. 295, 326 P.3d 1101 (distinguishing
between illegal and merely objectionable sentences and sentencing provisions for purposes of
contemporaneous object/waiver rule and procedural Lenihan rule). Accord Garrymore, ¶ 90.
2
We also separately reversed a non-specific restitution award and remanded for reconsideration
and imposition of a definite amount of restitution. Heafner, ¶¶ 12-13.
32
¶61 In State v. Petersen, 2011 MT 22, 359 Mont. 200, 247 P.3d 731, upon imposing a
base 100-year sentence for deliberate homicide, the district court erroneously imposed an
additional 10-year statutory weapons enhancement in disregard of the statutory prerequisite
that the State include the weapons enhancement in the charging Information. Petersen,
¶¶ 1, 4, and 13. Pursuant to Heafner, we reversed and remanded for entry of an amended
judgment striking the illegal weapons enhancement, thereby preserving the base 100-year
sentence originally imposed. Petersen, ¶ 16. As in Heafner, we held that remand for
resentencing was not the proper remedy because striking the illegal sentencing provision
was the only way to correct the illegality. Petersen, ¶ 16.
¶62 Similarly in Olivares-Coster, upon sentencing a seventeen-year-old defendant to
two consecutive life sentences for deliberate homicide and attempted deliberate homicide
(two concurrent counts), we held that the district court erroneously restricted his parole
eligibility pursuant to an otherwise applicable mandatory parole restriction statute, but
without consideration of a separate statutory exception for offenders less than
eighteen-years-old. Olivares-Coster, ¶¶ 11-14 and 20. Concluding that the most
straightforward way to correct the erroneous portion of the sentence was to simply strike
the offending parole restriction, we reversed and remanded for entry of an amended
judgment to that end. Olivares-Coster, ¶¶ 20 and 22 (by analogy to Heafner and Peterson).
In rejecting the State and dissent assertion that the appropriate remedy was remand for
resentencing and consideration of whether a discretionary parole restriction might yet be
appropriate, we held that remand for resentencing “would be futile” because the record
clearly indicated that the district court had already “explicitly declined” to otherwise
33
consider a discretionary parole restriction in its oral pronouncement of sentence.
Olivares-Coster, ¶¶ 19-20.3
¶63 Here, on postconviction review over thirty years after the fact, the District Court
correctly concluded pursuant to Miller and Montgomery that Keefe’s original 1987
sentence (3 consecutive life sentences without parole for deliberate homicide, a
consecutive 10-year sentence for burglary, and 4 consecutive 10-year weapons
enhancements (40 years)) was unconstitutional in violation of the Eighth Amendment
prohibition against cruel and unusual punishment. The court thus vacated the original
sentence for resentencing for due consideration as to whether Keefe is in fact irreparably
corrupt and incorrigible for Eighth Amendment purposes. The State did not subsequently
challenge that determination.
¶64 However, on resentencing, the District Court rejected and ignored unrebutted
testimony of the independent court-appointed forensic psychologist and former Warden of
the Montana State Prison regarding Keefe’s maturation and demonstrated amenability to
rehabilitation and community supervision. The court thus reimposed the original sentence
without material change on the same grounds originally considered and imposed. Whether
on the Majority’s cited ground for reversal, or a more straight-forward recognition that the
3
Accord Vernon Kills on Top v. Guyer, No. OP 18-0656, 2019 WL 3451280, *2 and *5 (Mont.
July 30, 2019) (reversing and remanding for entry of an amended judgment striking double
jeopardy based illegal sentence (aggravated kidnapping LWOP) but preserving the balance of the
original sentence (deliberate homicide-life sentence with no parole restriction)), reh’g denied,
Vernon Kills on Top v. Guyer, No. OP 18-0656, 2019 WL 5057500, *3 (Mont. Oct. 8, 2019)
(denying State petition for rehearing seeking remand for resentencing on both offenses).
34
State failed to meets its evidentiary burden of providing irreparable corruption and
incorrigibility on Eighth Amendment review, the sentence reimposed by the District Court
on resentencing in 2019 is just as illegal as the same sentence it previously found illegal in
violation of the Eighth Amendment.
¶65 As in Olivares-Coster, Peterson, and Heafner, Keefe’s illegal sentence is now
constitutionally correctable only by striking his parole restriction, thus not affecting the
balance of his base sentence and thereby merely affording him an opportunity for parole in
the ordinary course of Montana law.4 As in Olivares-Coster, remand for yet a third
sentencing is unnecessary and futile because the District Court has already had an
opportunity to correct the fundamental Miller-Montgomery error in this case and
emphatically declined to do so upon intentional disregard of unrebutted evidence
manifestly fatal to overcoming the determinative constitutional presumptions. Irrespective
of its patently erroneous conclusion that favorable evidence of Keefe’s post-offense
development, maturation, and conduct was not relevant to whether he is irreparably corrupt
4
As correctly noted by the original sentencing judge (Hon. Thomas McKittrick) in 1987, Keefe’s
crimes were among the most heinous, senseless, and irreparably harmful to the victims and their
family as any conceivable. As with the infamous Charles Manson murders in California, the
Montana Parole Board may never see fit to grant Keefe parole, even if eligible. But that is not the
constitutional point. The constitutional point of Miller and Montgomery is that even an
incomprehensibly heinous juvenile offender should at least have the opportunity for parole,
whether ultimately successful or not, absent affirmative proof beyond the mere heinous facts of
the crime that the juvenile offender is in fact irreparably corrupt and incorrigible. See also Roper
v. Simmons, 543 U.S. 551, 569-71, 125 S. Ct. 1183, 1195-96 (2005) (noting significant differences
between juvenile and adult offenders in heinous crimes for purposes of Eighth Amendment cruel
and unusual punishment); Steilman v. Michael, 2017 MT 310, ¶¶ 26-33, 389 Mont. 512, 407 P.2d
313 (Wheat, J., dissenting) (discussing implications of Miller and Montgomery and remand for
striking of offending juvenile offender parole restriction as proper remedy).
35
and incorrigible, the District Court arbitrarily discredited and dismissed the unrebutted
contrary evidence unambiguously on the merits, without any record justification or basis
for discrediting its veracity, credibility, or weight. Under these peculiar circumstances,
remand for yet another resentencing will futilely accomplish nothing more than
unnecessarily prolonging the inevitable on the manifestly static evidentiary record, thereby
unnecessarily causing further emotional distress to the victims’ family, inflammation of
public sentiment, delay, and public expense. The State does not assert that it will have any
new evidence to bring to bear and has made no showing of any reason why yet another
resentencing over 30 years after the fact is necessary to correct this constitutional error in
any manner other than by striking and excluding Keefe’s parole restriction. I therefore
dissent from the Court’s remand for resentencing and would instead simply remand for
entry of an amended judgment striking and excluding the restrictions on Keefe’s parole
eligibility.
/S/ DIRK M. SANDEFUR
Justice Laurie McKinnon, concurring and dissenting.
¶66 I join the Court’s opinion on Issues One and Three; I dissent from the Court’s
resolution of Issue Two and conclude that Keefe received an individualized resentencing
where “youth and its attendant characteristics” was considered as constitutionally required.
After Keefe’s resentencing for a triple homicide, and considering all of Keefe’s “features”
of youth, I conclude that the sentence imposed was not disproportionate under the
Eighth Amendment.
36
¶67 This case concerns the scope of the rule enunciated in Miller and declared
retroactive in Montgomery. More particularly, it asks what procedures a state must afford
a postconvicition petitioner in a Miller-Montgomery resentencing hearing in order to
comply with the substantive rule established in Miller that renders life without parole
disproportionate for the vast majority of juveniles given their “diminished culpability and
heightened capacity for change . . . .” Miller, 567 U.S. at 479. Under Miller, only those
juveniles whose crimes reflect “permanent incorrigibility” are constitutionally eligible for
life without parole. Montgomery, 577 U.S. at ___, 136 S. Ct. at 726. Miller and
Montgomery establish that the Eighth Amendment requires a sentencing court consider the
circumstances and attendant characteristics of youth before imposing a sentence of life
without parole on a juvenile homicide offender. Miller and Montgomery each dealt with
mandatory sentencing schemes that left the sentencing court with no discretion but to
indiscriminately sentence all offenders to life without parole. Miller reasoned that by
making youth irrelevant, as it is in a mandatory sentencing scheme, there is “too great a
risk of disproportionate punishment.” Miller, 567 U.S. at 479. Miller relied on cases
holding the Eighth Amendment “categorically” forbids certain punishments for a class of
offenders or type of crime. Miller, 567 U.S. at 470. For example, the death penalty may
not be imposed for crimes other than murder, and it may not be imposed on those who are
intellectually disabled or those under the age of eighteen. Miller, 567 U.S. at 470.
Miller also relied on cases prohibiting the mandatory imposition of capital punishment and
which required instead that “sentencing authorities . . . consider the characteristics of a
defendant and the details of his offense before sentencing him to death.”
37
Miller, 567 U.S. at 470. Miller drew on its precedent and concluded that juveniles are
“constitutionally different” for sentencing purposes, just as death is constitutionally
different. Miller, 567 U.S. at 481. Sentencers, therefore, must have the opportunity to
consider the “mitigating” circumstances of youth before imposing the harshest sentence a
youth can receive (life without parole), just as mitigating circumstances are considered in
adult capital punishment cases. Miller, 567 U.S. at 489.
¶68 Miller established that a sentence of life without parole is disproportionate for all
juveniles, except those juveniles whose crimes reflect “irreparable corruption.”
Miller, 567 U.S. at 479-80. Miller requires that the sentencing be individualized so the
sentencer can assess and decide which class of juveniles the offender is in: those juveniles
who cannot be subjected to life without parole because their crimes reflect “transient
immaturity,” or the rare juvenile who can be constitutionally sentenced to life without
parole because their crimes reflect irreparable corruption. Miller, 567 U.S. at 479-80.
Miller did not ban life without parole for all juvenile murderers, only those rare juveniles
whose crimes reflect permanent incorrigibility. The task at resentencing is for the
sentencing court to decide in which group the juvenile offender belongs, guided by factors
identified in Miller. In neither Miller nor Montgomery did the Court mandate the procedure
state courts are to follow to ensure that only “permanently incorrigible” youth are sentenced
to life without parole; instead, the Court allowed states, under principles of federalism, to
“develop[ ] appropriate ways to enforce” the process of distinguishing between the two
classes of offenders. Montgomery, 577 U.S. at ___, 136 S. Ct. at 735. However, the
Montgomery Court warned that adherence to principles of federalism “should not be
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construed to demean the substantive character of the federal right at issue.”
Montgomery, 577 U.S. at ___, 136 S. Ct. at 735.
¶69 As Miller addressed a mandatory sentencing scheme, the Miller Court listed several
non-exhaustive “hallmark features” of youth that sentencing courts are precluded from
considering under mandatory sentencing schemes. Those features include:
1. “immaturity, impetuosity, and failure to appreciate risks and
consequences”;
2. “the family and home environment that surrounds . . .from which
[a juvenile] cannot usually extricate himself—no matter how brutal or
dysfunctional”;
3. “the circumstances of the homicide offense, including the extent of
his participation in the conduct and the way familial and peer pressures may
have affected him” or whether “he might have been charged and convicted
of a lesser offense if not for incompetencies associated with youth”; and
4. “the possibility of rehabilitation.”
Miller, 567 U.S. at 477-78. Conversely, state courts conducting Miller-Montgomery
resentencing hearings have applied these “hallmark features” of youth as factors to
consider at resentencing. Miller, itself, did not require a sentencing court to consider or
assess any one feature of youth over another, or make one feature more important than
others. Miller does not require any one particular feature of youth to predominate over
others; rather, very simply, a sentencing court “misses too much if [it] treats every child as
an adult.” Miller, 567 U.S. at 477. Here, after accurately explaining the implications of
Roper, Miller, Montgomery, and Stielman, to Keefe’s resentencing, the District Court
considered, and addressed in its written order, each feature of youth. I turn to those features
now.
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¶70 The District Court found that, at the time of the offense, Keefe was criminally
sophisticated; developmentally mature; and assertive of his independence, indeed living on
his own. Keefe had already committed 50 offenses as a juvenile and was well-versed in
the criminal justice system. The record supports the District Court’s findings, and Keefe
admitted, that he rehearsed his criminal activities before executing them. He knew the
consequences of his actions and chose to disregard them. The psychological evaluations
conducted for Keefe’s original sentencing and his postconviction resentencing supported
the District Court’s findings that Keefe did not act impulsively; that he exhibited
considerable self-control and calculation; and that Keefe committed his crimes with full
knowledge of what would result, but simply did not care.
¶71 The District Court next considered Keefe’s childhood, family, and home
environment. After considering challenges Keefe faced as a youth, the District Court
concluded there was no evidence of “significant developmental experiences,
traumatic events, or other life-changing situations that would mitigate the heinously violent
crimes that he committed.” Regarding any peer or family influences impacting Keefe,
Dr. Page explained that “[i]t does not appear that Mr. Keefe experienced abnormally
strong, negative, or chronic influences that would have had an anomalous impact on his
decision making . . . [and] most, if not all, of [Keefe’s] negative experiences occurred as a
result of his own behaviors.”
¶72 The District Court next considered the circumstances of the triple homicide. After
first noting Keefe’s chronological age at the time of the offense being 88 days short of his
eighteenth birthday, the District Court explained that Keefe had “murdered three innocent
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people in cold blood”; that “[h]e did it mercilessly and without hesitation or remorse”; and
that he did not stop with one victim, but killed three times. First, Keefe shot Dr. McKay
in the back of the head as he was preparing to set out glasses for a family gathering; next,
Keefe shot Dr. McKay’s daughter, Dr. Marian McKay Qumar, twice as she attempted to
flee—once in the back and again in the ankle; and finally, Keefe shot Dr. McKay’s wife,
Constance, in the back as she lay over her dying daughter. Keefe committed these murders
alone and without an accomplice. He acted deliberately and with premeditation. He was
sober during the homicides. The District Court found the nature of the crimes particularly
abhorrent because Keefe “did not stop with one victim. He killed, he killed, and he killed.”
Finally, given the circumstances of the offense, Keefe would not be entitled to a lesser
offense than deliberate homicide.
¶73 Regarding Keefe’s prospects for rehabilitation, reports filed in preparation for the
original sentencing indicate Keefe had an anti-social personality disorder, extensive
criminal history, and had failed in every treatment facility he was placed. The PSI
recommended a sentence of life without parole. At the resentencing hearing, the
District Court allowed Keefe to present evidence of prison rehabilitative efforts, but
concluded that even if it were proper to consider Keefe’s rehabilitative efforts in prison,
Keefe’s lack of remorse, ideations through tattoos, and changing stories of his offense,
demonstrated his claims of rehabilitation were not credible. Keefe tattooed his body with
three skulls, the grim reaper, and the phrase “guilty until proven innocent.” These tattoos
were not present when Keefe was originally sentenced. Dr. Page concluded these
permanent markings speak to Keefe’s pride in the murders he committed and his belief he
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was treated unfairly. The District Court interpreted the tattoos as “evidence of Keefe’s
bravado about [the] killings and his total lack of genuine remorse.” The District Court
found that Keefe’s recent claims of being only an accomplice to a now-deceased person
demonstrate that Keefe has not accepted responsibility for his crimes and is not committed
to rehabilitation.
¶74 Based on the foregoing evidence and findings, the District Court specifically found
that Keefe was one of those juveniles whose “crimes [did] not represent transient
immaturity, but rather they represent irreparable corruption and permanent incorrigibility
as defined by the United States Supreme Court.”
¶75 This Court concludes that the District Court disregarded evidence of Keefe’s
rehabilitation and did not fully consider relevant evidence. Although the District Court
addressed and considered the relevant factors of youth, this Court bases its conclusion on
the District Court’s discussion of whether postconviction evidence of rehabilitation was
relevant to Keefe’s Miller-Montgomery resentencing. Evidence of postconviction
rehabilitation, even if it is relevant, is only an aspect of one feature (“the possibility of
rehabilitation”) of youth. Here, the District Court considered the prospects of rehabilitation
at the time of Keefe’s original sentencing and at his resentencing, in addition to all the other
factors of youth. Regardless, and in spite of its initial reluctance, the District Court allowed
evidence of Keefe’s postconviction rehabilitation, appointed an independent expert to
examine Keefe, ordered an updated PSI, and allowed Keefe to present any and all witnesses
he wanted. The District Court, therefore, considered Keefe’s potential for rehabilitation in
light of all the other evidence produced and relevant to the other “features” of youth. The
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District Court was “unmoved” by Keefe’s evidence of postconviction rehabilitation in
prison, determined it not to be credible, and concluded Keefe has not “accept[ed] full
responsibility for his crime.” Through its discussion of each of the “hallmark features” of
youth, the District Court demonstrated it understood the requirements of Miller and
Montgomery, and of Montana law. The District Court assessed the presented evidence
relevant to all the factors of youth and concluded that Keefe’s “crimes do not represent
transient immaturity, but rather they represent irreparable corruption and permanent
incorrigibility as defined by the United States Supreme Court.” This Court has pointed to
no error in the District Court’s findings; Keefe received a resentencing hearing where
factors of youth were considered; and Keefe’s resentencing complied with Miller,
Montgomery, and Montana law. A remand to consider additional evidence on an aspect of
one factor that the District Court found not credible is misguided.
¶76 In my opinion, Keefe received a resentencing hearing that considered the
“hallmark features” of youth, as set forth in Miller and Montgomery, and adopted by this
Court. He now contends that the District Court reached the wrong result in resentencing
him to life without parole and faults the District Court for not weighing more heavily the
purported evidence of his rehabilitation. Indeed, Keefe was an adult who has been
incarcerated for decades when he was resentenced. Taking advantage of this lapse in time,
Keefe asks this Court to consider his experience in the years since his crime. We should
be mindful that Keefe’s request for relief comes in the form of a petition for postconviction
relief. The postconviction court asks the same questions as the original court. While an
argument can be made that a sentencing court is not constitutionally required to assess
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Keefe’s subsequent experience in prison, the District Court nevertheless considered this
evidence. The District Court did not find Keefe’s evidence of rehabilitation credible and
found overwhelmingly that consideration of the other features weighed heavily against
Keefe. Here, Keefe received exactly what the Eighth Amendment requires: an
individualized sentencing where the sentencing judge considered youth and its attendant
characteristics before imposing a sentence of life without parole. The District Court
specifically addressed the requirements of Miller and Montgomery and concluded that
Keefe fit into the small and rare class of offenders whose crimes reflect
“irreparable corruption,” and not “transient immaturity.” I cannot find a legally
supportable basis upon which to substitute what I might have done at sentencing for that
of the District Court.
¶77 I would affirm the District Court’s sentence and deny Keefe’s request for a third
resentencing. I dissent.
/S/ LAURIE McKINNON
Justice Jim Rice joins in the Concurrence and Dissent of Justice McKinnon.
/S/ JIM RICE
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