DA 19-0368

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 8

STATE 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 

01/08/2021

Case Number: DA 19-0368
2

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:

__________________________________________

Clerk

Vir-6A.-if
3

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). 
4

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,” 
5

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. 
6

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 
7

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. 
8

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 
9

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 
10

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). 
11

¶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 
12

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 
13

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 
14

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. 
15

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
16

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. 
17

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, 
18

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 
19

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. 
20

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 
21

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
22

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 
23

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.
24

¶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 
25

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 
26

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 
27

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.”
28

¶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 
29

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. 
30

¶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. 
31

¶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 
32

760; 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. 
33

¶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 
34

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). 
35

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). 
36

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. 
37

¶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.” 
38

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
44

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