08/05/2025
DA 23-0502
Case Number: DA 23-0502
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 169
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROGER MICHAEL KEECH,
Defendant and Appellant
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDC-2002-181
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Jeff Wilson, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz,
Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: July 16, 2025
Decided: August 5, 2025
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Roger Michael Keech (Keech) appeals from the July 12,
2023 Order Revoking Defendant’s Sentence and Amended Judgment and Commitment
issued by the First Judicial District Court, Lewis and Clark County. We reverse and
remand to the District Court to amend the judgment to grant Keech an additional 2,220
days credit for time served in addition to the 62 days credit for time served from February
24, 2023, to April 7, 2023, and the 1,167 days credit for elapsed time originally ordered by
the court in its July 12, 2023 order and judgment.
¶2 The issue on appeal is:
Whether the district court imposed an illegal disposition following Keech’s second
revocation proceeding by failing to award the proper amount of credit for time
served.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In First Judicial District Court Cause No. CDC-02-181 (hereinafter the Lewis and
Clark cause), Keech was sentenced on January 9, 2003, to the Montana Department of
Corrections (DOC) for a term of 20 years with 16 years suspended. In 2007 and 2008,
Keech committed new offenses, including a felony forgery in Yellowstone County. In
addition to being charged in Yellowstone County with the forgery, in Cause No.
DC-08-173 (hereinafter the Yellowstone County cause), the State petitioned to revoke the
suspended sentence in his Lewis and Clark cause. In November 2008, pursuant to a plea
agreement, Keech was sentenced in the Yellowstone County cause to 5 years DOC,
concurrent to the Lewis and Clark cause.
2
¶4 Subsequently, on March 12, 2009, Keech’s suspended sentence in the Lewis and
Clark cause was revoked and the court imposed a 16-year commitment to the DOC with
11 years suspended. As the disposition sentence was silent as to whether it was concurrent
or consecutive to any other sentence imposed, the DOC ran it consecutively to the
Yellowstone County cause, presumably pursuant to § 46-18-401(4), MCA, which provides,
“[s]eparate sentences for two or more offenses must run consecutively unless the court
otherwise orders.” On October 14, 2011, Keech filed a pro se petition for writ of habeas
corpus asserting DOC improperly failed to merge his Yellowstone County cause when it
was designated to be concurrent with the Lewis and Clark cause. The State asserted
Keech’s sentences should run consecutively pursuant to § 46-18-401(4), MCA. This Court
did not address Keech’s argument that upon issuance of the Yellowstone County sentence
and the pronouncement that it was concurrent to the Lewis and Clark cause, it merged with
the Lewis and Clark cause such that later revocation of it did not result in severing of the
sentences. Instead, we determined Keech did not meet his burden to show the invalidity
of the judgment or sentence he attacked. We reasoned that because the Lewis and Clark
judgment “failed to specify that Keech’s sentences should run concurrently, they must run
consecutively. See § 46-18-401(4), MCA.” Keech v. Kirkegard, No. OP 11-0622,
364 Mont. 550,
286 P.3d 248 (Feb. 7, 2012) (Keech I).
¶5 Following this Court’s February 7, 2012 Order, Keech filed a motion to withdraw
his guilty plea in the Yellowstone County cause, which the district court treated as a petition
for postconviction relief (PCR). In that case, Keech argued he would never have entered a
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guilty plea in the Yellowstone County cause if he had known the sentences in the
Yellowstone County cause and the Lewis and Clark cause would run consecutively. The
district court denied the petition as untimely. Keech appealed. This Court affirmed, noting
that as the court in the Lewis and Clark cause failed to specify the sentences should run
concurrently, they must run consecutively consistent with § 46-18-401(4), MCA, as noted
in our prior order of February 7, 2012. State v. Keech, No. DA 12-0635, 2013 MT 111N,
2013 Mont. LEXIS 133 (Keech II).
¶6 The State again petitioned to revoke the suspended sentence in the Lewis and Clark
cause in 2018 and 2019. While pending revocation, Keech again filed a pro se petition for
a writ of habeas corpus asserting it was improper to run his Yellowstone County cause
consecutively to the revocation of his Lewis and Clark cause. He asserted this to be
improper as the Yellowstone County cause did not exist when he was originally sentenced
in the Lewis and Clark cause and when his Lewis and Clark cause was later revoked, the
Yellowstone County sentence was already pronounced to be concurrent to it and had
merged with it. This Court again denied his habeas petition noting that the court in the
Lewis and Clark cause imposed a lawful sentence and when it was silent as to how the
sentence would run, pursuant to § 46-18-401(4), MCA, it must run consecutively to the
Yellowstone County cause. Keech v. Bragg, No. OP 23-0220,
412 Mont. 551,
531 P.3d
542 (April 25, 2023) (Keech III).
¶7 At the April 27, 2023 sentencing hearing, the District Court revoked Keech’s
suspended sentence and sentenced him to an 11-year DOC commitment, with 6 years
4
suspended. The District Court granted 62 days of credit for time served and 1,167 days of
elapsed time credit. The court’s written Order Revoking Defendant’s Sentence and
Amended Judgment and Commitment followed on July 12, 2023.
¶8 Additional facts will be discussed as necessary below.
STANDARD OF REVIEW
¶9 We review the revocation of a suspended sentence for abuse of discretion. State v.
Jardee, 2020 MT 81, ¶ 5,
399 Mont. 459,
461 P.3d 108. Additionally, revocation decisions
involve both legal and factual findings, and we review a district court’s legal findings de
novo and its factual findings for clear error, thus findings of fact regarding a probationer’s
credit for elapsed time or time served are reviewed for clear error. Jardee, ¶¶ 5, 12.
“[W]hen the district court’s authority to take a specific action is at issue, the question is
one of law and our review is de novo.” State v. Gudmundsen,
2022 MT 178, ¶ 8,
410 Mont.
67,
517 P.3d 146; State v. Tippets,
2022 MT 81, ¶ 9,
408 Mont. 249,
509 P.3d 1.
Calculating credit for elapsed street time and time served is not a discretionary act, but a
legal mandate. State v. Pennington,
2022 MT 180, ¶ 18,
410 Mont. 104,
517 P.3d 894;
Gudmundsen, ¶ 8. As such, a district court’s determination of street time or time served
credit is reviewed for legality and we exercise de novo review. Tippets, ¶ 10. Factual
findings “are clearly erroneous if they are not supported by substantial credible evidence,
the court misapprehended the effect of the evidence, or if a review of the record leaves this
Court with the definite firm conviction that a mistake has been made.” Jardee, ¶ 5 (quoting
State v. Johnson,
2018 MT 277, ¶ 10,
393 Mont. 320,
430 P.3d 494). “[T]he interpretation
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and construction of a statute is a matter of law, and we review whether the district court
interpreted and applied a statute correctly de novo.” Jardee, ¶ 5 (citation omitted).
DISCUSSION
¶10 Keech continues to assert the revocation sentence in the Lewis and Clark cause
should have properly run concurrent to the Yellowstone County cause and failure to do so
is contrary to our holdings in State v. Seals, 2007 MT 71,
336 Mont. 416,
156 P.3d 15,
State v. Adams,
2013 MT 189,
371 Mont. 28,
305 P.3d 808, and State v. Wolfblack,
2024 MT 166,
417 Mont. 376,
553 P.3d 9. He also asserts he has not been properly credited
with credit for time served since his initial arrest in 2002. Keech asserts he is entitled to
receive credit for 2,251 days of credit for time served in addition to the 1,167 days of
elapsed street time credit the parties stipulated to and ordered by the District Court in the
July 12, 2023 Order Revoking Defendant’s Sentence and Amended Judgment and
Commitment.
¶11 In response, the State argues that this Court already rejected Keech’s same claim in
both Keech I and Keech III and that under the doctrines of “the law of the case” and “res
judicata” Keech may not raise issues this Court previously decided. Despite this argument,
the State recognizes Keech I and Keech III conflict with our holdings in Seals and Adams
and recognizes that pursuant to State v. Southwick,
2007 MT 257, ¶¶ 17-19,
339 Mont. 281,
169 P.3d 698, res judicata does not apply when a defendant is subjected to a facially illegal
sentence. The State further concedes that, even if the revocation sentence in the Lewis and
Clark cause and the Yellowstone County sentence run consecutive, as it advocates, Keech
6
is entitled to receive an additional 892 days of credit for time served for the Lewis and
Clark sentence.
¶12 In Seals, Seals was sentenced on drug charges pursuant to a plea agreement. He
was sentenced to 5 years at the Montana State Prison (MSP) on count I and ten years
suspended on counts II and III. Counts II and III were ordered to run concurrent to each
other but consecutive to count I. After serving his sentence on count I and being discharged
to his suspended sentences, Seals’ suspended sentences on counts II and III were revoked
and the court imposed a 5-year MSP sentence on count II and a 5-year suspended sentence
on count III, consecutive to count II. Seals, ¶¶ 3-5. Seals appealed, asserting that pursuant
to § 46-18-203(7), MCA, the court had no authority to impose a sentence greater than the
sentence he originally received and the consecutive nature of the sentences on counts II
and III increased the original concurrent nature of the sentences. Although the State argued
that pursuant to § 46-18-401, MCA, it was within the district court’s discretion to run the
sentences imposed upon revocation consecutively or concurrently, this Court concluded
Ҥ 46-18-401, MCA, is not applicable to the revocation matter before us because
sentencing upon the revocation of a suspended or deferred sentence is particularly and
expressly governed by § 46-18-203, MCA[.]” Seals, ¶ 15. We explained that given our
statutory scheme, a sentencing court’s authority to re-sentence depends on when the illegal
sentence is discovered and challenged—if done while serving the sentence, it can be
corrected through re-sentencing, but if done during a revocation proceeding while serving
the suspended portion of the illegal sentence, upon sentencing in the revocation proceeding,
7
the court is constrained by the particulars of § 46-18-203(7), MCA. Seals, ¶ 15. Within
this framework, this Court determined the original sentences imposed for counts II and III
were illegal as outside the parameters of the 5-year maximum sentence permitted by
§ 45-9-102, MCA (1997) and § 46-18-401, MCA (1997),1 was not applicable to the
revocation as sentencing upon revocation of a suspended sentence was governed by
§ 46-18-203, MCA. We further explained that the district court could not elect to continue
the suspended sentence under § 46-18-203(7)(a) or (b), MCA, as that sentence was illegal
and its only option under (c) was to impose a lesser sentence as the original sentence was
illegal. Seals, ¶ 17. Thus, we reversed and directed the sentences imposed on counts II
and III to run concurrently and not consecutively. Seals, ¶ 20.
¶13 In Adams, we followed Seals. In October 2005, Adams was found to be a delinquent
youth and was committed to the DOC to age 18. In November 2006, under § 41-5-208,
MCA, Adams’ case was transferred to district court and supervisory responsibility to adult
probation services until his 21st birthday. While on youth court probation, Adams
committed felony offenses in Missoula and was charged as an adult with those offenses.
The State also filed a petition to revoke Adams’ probation in his youth case based upon the
new charges. Pursuant to a plea agreement, on March 26, 2007, the court in his adult cause
committed Adams to a 3-year DOC commitment, all suspended, to run consecutive to the
youth revocation disposition to be imposed. At the later youth revocation proceeding he
was revoked and committed to the DOC until his 21st birthday. Upon being released on
1
The 1997 version of § 46-18-401(4), MCA, is the same as the current version.
8
his 21st birthday in November 2009, Adams began serving his adult criminal sentence. In
January 2012, the State filed a petition to revoke his suspended adult criminal sentence.
Adams sought dismissal of the revocation action, asserting the court did not have the
authority to order his adult criminal sentence to run consecutive to the youth revocation
sentence to be imposed. Adams, ¶¶ 4-10.
¶14 We noted that as Adams had not challenged the 2007 adult criminal sentence until
the State filed its petition to revoke, his challenge to that sentence was untimely and he was
limited to challenging only the 2012 revocation sentence. Adhering to Seals, we again
noted:
[A] sentencing court’s authority to re-sentence a criminal defendant based
upon an illegal sentence depends upon when the illegal sentence is
discovered and challenged. If the illegal sentence is challenged while the
defendant is serving the sentence, the court has the authority to correct the
sentence by imposing a sentence that was statutorily authorized . . . If,
however, the illegal sentence is challenged during a revocation proceeding
held while the defendant is serving the suspended portion of the illegal
sentence, the court, upon sentencing in the revocation proceeding, is
constrained by the particulars of § 46-18-203(7), MCA.
Adams, ¶ 18 (quoting Seals, ¶ 15) (emphasis in original). As Adams was challenging a
sentence as illegal while serving the suspended portion, we concluded the revocation court
could not resentence him under the general sentencing statutes—which includes
§ 46-18-401, MCA, which generally governs the designation of a sentence as consecutive
or concurrent—but was instead constrained to the particulars of the revocation sentencing
provisions when correcting any illegality. Adams, ¶ 18.
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¶15 Recently, in Wolfblack, we again reiterated that “we have clearly held that
§ 46-18-401, MCA, is not applicable when a sentence is revoked because the revocation of
a suspended or deferred sentence is expressly governed by § 46-18-203, MCA.”
Wolfblack, ¶ 9. Applying our statutory scheme, we concluded that changing the terms of
the initial sentence by making it consecutive to a sentence not in existence at the time the
original sentence was imposed constituted an illegal sentence under § 46-18-203(7)(a)(iii),
MCA, as longer than the original sentence. Wolfblack, ¶ 13.
¶16 Keech asserts the DOC erroneously ran his 2009 Lewis and Clark revocation
disposition consecutively to his 2008 Yellowstone County sentence. He made the same
assertion in both Keech I and Keech III. As the State recognizes, Keech I is inconsistent
and at odds with Seals and Keech III is inconsistent and at odds with Seals and Adams
which we recently adhered to in Wolfblack. It is clear the DOC inappropriately used
§ 46-18-401, MCA, to erroneously run Keech’s 2009 Lewis and Clark revocation
disposition consecutive to his 2008 Yellowstone County sentence, making the revocation
sentence facially illegal under § 46-18-203(7)(a)(iii), MCA. The State advocates that
despite the revocation sentence being illegal and despite the holding of Southwick that res
judicata does not apply when a defendant is subjected to a facially illegal sentence, we
should affirm it based on “the law of the case” or “res judicata.”
¶17 In Keech I, Keech brought a pro se habeas action asserting the DOC erroneously ran
his 2009 Lewis and Clark revocation disposition consecutive to his 2008 Yellowstone
County sentence. The State responded that the DOC’s long-standing practice of the MSP
10
Records Department to follow the default statute—§ 46-18-401, MCA—by operation of
law prohibited running the sentences concurrently. The State proclaimed, citing State v.
McGuire, 260 Mont. 386,
860 P.2d 148 (1993), it is the later sentencing judge that has the
authority to make the decision to run sentences concurrently or consecutively. The State,
however, failed to cite or address Seals or § 46-18-203(7)(a)(iii), MCA, enacted in 2003,
which, in essence, made McGuire inapplicable to revocation proceedings. Apparently in
reliance on the State’s assertions, we erroneously applied § 46-18-401, MCA, and McGuire
to deny Keech’s habeas action. After unsuccessfully attempting to withdraw his guilty plea
in the Yellowstone County cause asserting he would never have pled guilty had he known
the sentences would be run consecutively contrary to his plea agreement, Keech filed
another habeas cause again asserting the DOC erroneously ran his 2009 Lewis and Clark
revocation disposition consecutive to his 2008 Yellowstone County sentence. In reliance
on our order in Keech I and the DOC’s assertion that Yellowstone County could not run its
sentence concurrent to the Lewis and Clark sentence as the Lewis and Clark sentence had
not yet been imposed, we again erroneously denied Keech’s habeas petition without
considering § 46-18-203(7), MCA, or our decisions in Seals and Adams. Given this
background, we are not persuaded that we should use “the law of the case” or “res judicata”
to perpetuate our erroneous orders in Keech I and Keech III, when justice demands
otherwise.
¶18 We applied the “interests of justice” exception to principles of collateral estoppel in
Kills on Top v. State,
279 Mont. 384,
928 P.2d 182 (1996), stating that “‘[c]onventional
11
notions of finality of litigation have no place where life or liberty is at stake and
infringement of constitutional rights is alleged.’” Kills on Top, 279 Mont. at 400,
928 P.2d
at 192 (quoting Sanders v. United States,
373 U.S. 1, 8,
83 S. Ct. 1068, 1073 (1963)). Since
that time, this Court consistently has held that “a facially invalid sentence ‘presents the rare
and exceptional situation where the procedural bar of res judicata should not apply because
justice demands that we not permit a facially illegal sentence to stand.’” Ayers v. Seventh
Judicial Dist. Ct., No. OP 12-0763,
369 Mont. 541,
310 P.3d 1098 (Feb. 26, 2013) (quoting
Southwick, ¶ 19) (granting writ of habeas corpus and ordering resentencing on 2011
conviction because of illegal persistent felony offender sentence). See also Bauer v. Guyer,
No. OP 19-0358, Order (Mar. 18, 2020) (granting writ of habeas corpus and remanding for
resentencing on 2002 conviction because separate persistent felony offender sentence was
facially illegal under State v. Gunderson,
2010 MT 166,
357 Mont. 142,
237 P.3d 74); Kills
on Top v. Guyer, No. OP 18-0656, Order (July 30, 2019) (granting writ of habeas corpus
and directing district court to strike the petitioner’s 1988 life sentence for felony aggravated
kidnapping, the predicate offense for his deliberate homicide conviction, in light of State
v. Russell,
2008 MT 417,
347 Mont. 301,
198 P.3d 271); Lott v. State,
2006 MT 279, ¶ 22,
334 Mont. 270,
150 P.3d 337 (determining incarceration of an individual pursuant to a
facially invalid sentence represents a grievous wrong and a miscarriage of justice
warranting the ability to challenge its legality through habeas corpus relief). As we said in
the 1996 Kills on Top decision, “Finality and fairness are both important goals. When faced
with an apparent conflict between them, this Court unhesitatingly chooses the latter.” Kills
12
on Top, 279 Mont. at 400,
928 P.2d at 192 (quoting State v. Huffman,
643 N.E.2d 899, 901
(Ind. 1994)) (emphasis in original). As the District Court is constrained to the particulars
of the revocation sentencing provisions of § 46-18-203(7), MCA, the Lewis and Clark
revocation sentence cannot run consecutively to the Yellowstone County sentence as
that would impose a longer term than the original sentence in violation of
§ 46-18-203(7)(a)(iii), MCA.
¶19 Although Keech has consistently challenged his Lewis and Clark revocation
sentence, we erroneously failed to discover its illegality until now, when Keech is
challenging his revocation sentence. As such, any relief must come through the revocation
proceeding where the court upon sentencing in the revocation is constrained by the
particulars of § 46-18-203(7), MCA, to correct any illegality. The State advocates that if
this Court determines Keech I and Keech III were erroneously decided, which we now do,
the proper remedy is to reverse the July 12, 2023 order revoking Keech’s sentence and
amending judgment and remand to the District Court to hold a dispositional hearing where
the District Court will be constrained by the particulars of § 46-18-203(7), MCA. Keech
asserts there is no need to remand for a new dispositional hearing as all of the time he
requests he be credited with is incarceration time, not elapsed time, and we can accurately
calculate that time based on the record and the parties’ briefs. We agree with Keech in this
regard.
¶20 As discussed above, in issuing a revocation disposition sentence the court is
constrained by the particulars of § 46-18-203, MCA. Pursuant to § 46-18-203(7)(b), MCA,
13
upon revocation of a suspended sentence “[c]redit must be allowed for time served in a
detention center or for home arrest time already served.” As we have noted, the disputed
time periods at issue in this case are those when Keech was incarcerated. By statute,
awarding credit for time served in a detention center is not a discretionary act. Section
46-18-203(7)(b), MCA. None of the disputed time periods in this case involved elapsed
time, and the State cannot simply manufacture an illusory elapsed time dispute requiring
remand for a fact-finding hearing in its response brief when this Court has been asked to
determine credit for time served. While Justice Rice’s Concurrence and Dissent “urge[s]
the Court to not return to our sentencing factfinding days,” Concurrence and Dissent, ¶ 59,
that is simply not what the Court is doing in this case. The record reflects when Keech was
incarcerated and statute requires Keech be given credit for time served. Those calculations
are, indeed, simple and do not involve this Court acting as the factfinder. The “very
complicated” record to which Justice Rice refers, Concurrence and Dissent, ¶ 59, may be
relevant to elapsed time calculations, but those calculations are not before us here and the
State’s newfound dispute with the District Court’s elapsed time calculation—again,
presented for the first time in its appellate response brief after the parties stipulated to the
amount of elapsed time below and Keech presented no argument related to elapsed time in
his opening brief—has no effect on this Court’s ability to do the simple math required to
give credit for Keech’s incarcerated time.
¶21 Keech asserts he is entitled to 2,251 days of additional credit for time served. The
State concedes he is entitled to 892 of those claimed days. The State disputes he is entitled
14
to 1,212 days of time served before the District Court imposed the second, most recent
revocation—353 days from December 15, 2013, to December 2, 2014, and 859 days from
August 15, 2015, to December 20, 2017—and various other shorter periods largely based
on its continued assertion the Yellowstone County and Lewis and Clark sentences should
run consecutively. As the State concedes Keech is at a minimum entitled to an additional
892 days credit for time served, we need not address the incarceration periods upon which
Keech and the State agree and limit the below consideration to the disputed time periods
of incarceration.
¶22 As discussed above, Keech was sentenced in the Yellowstone County cause in
November 2008 to a 5-year DOC commitment to run concurrently to his Lewis and Clark
cause. Upon imposition of this sentence the Yellowstone County sentence merged with
the Lewis and Clark sentence. State v. Kortan, 2022 MT 204, ¶ 18,
410 Mont. 336,
518 P.3d 1283 (“[U]nrelated sentences merge when a district court orders that one runs
concurrently with the other.”). Subsequently, the suspended portion of Keech’s Lewis and
Clark sentence was revoked and the court imposed a revocation disposition of 16 years to
the DOC, with 11 years suspended and 87 days of credit for time served. As explained
above, the District Court was constrained to the particulars of the revocation sentencing
provisions of § 46-18-203(7), MCA, thus the Lewis and Clark revocation sentence could
not run consecutively to the Yellowstone County sentence without violating § 46-8-203(7),
MCA. Therefore, the revocation sentence should have started to run on March 12, 2009,
the date it was imposed, and the suspended portion then began to run on December 15,
15
2013. As such, Keech is entitled to 1,212 days credit for incarceration time he served from
December 15, 2013, to December 2, 2014, and from August 15, 2015, to December 20,
2017.
¶23 Keech asserts that because his Yellowstone County and Lewis and Clark sentences
merged when the Yellowstone County sentence was imposed in November 2008 to run
concurrently to his Lewis and Clark cause, he is entitled to credit for 84 days he served
from December 19, 2008 to March 12, 2009. The State asserts he is not entitled to this
credit as Keech may not raise issues this Court previously decided in Keech I and Keech
III. As discussed above, we are not persuaded by this assertion. Because the Yellowstone
County sentence and the Lewis and Clark sentences merged in November 2008 when the
Yellowstone County district court imposed sentence concurrently with the Lewis and Clark
sentence, the Lewis and Clark sentence was running during the time period from December
19, 2008, to March 12, 2009, and these 84 days of incarceration must be credited toward
Keech’s Lewis and Clark revocation sentence. State v. Souther, 2022 MT 203, ¶ 13,
410 Mont. 330,
519 P.3d 1 (noting credit applied to one sentence must also be applied to
any sentence running concurrently to it).
¶24 Keech asserts he is entitled to credit for time served from May 4, 2008, the date he
began serving the 16-year suspended portion of his original sentence, to September 22,
2008. The State asserts this period of credit began 32 days later, on June 5, 2008, the date
on which he was served an arrest warrant previously issued April 17, 2008. At the time
the warrant was served, Keech was in custody and had been so since March 2008 on the
16
Yellowstone County cause. In State v. Crazymule, 2024 MT 58,
415 Mont. 536,
545 P.3d
66, we held the time served calculation begins on the date the sentencing court gains
jurisdiction over the defendant and the defendant was detained subject to that jurisdiction.
Further, we recognized that regardless of whether a warrant is served, if it acts as a detainer,
then issuance of the warrant is what triggers the issuing court’s jurisdiction and its reach
over the defendant. Crazymule, ¶ 12; see also State v. Risher,
2024 MT 309, ¶ 16,
419 Mont. 395,
560 P.3d 1203. Here, the State asserts only that credit from May 4, 2008,
to June 5, 2008, should be denied as the warrant was not served until June 5, 2008. The
State does not address or dispute the warrant acted as detainer during this disputed time.
As such, we conclude Keech is entitled to 32 days credit for time served from May 4, 2008,
to June 5, 2008.
¶25 Finally, Keech asserts he is entitled to 31 days of credit for time served in a treatment
facility pursuant to a court order from November 23, 2002, to December 23, 2002.
Although general sentencing statute § 46-18-403(1)(b), MCA, defines “incarceration” to
include “time spent in a residential treatment facility under the order of a court,”
§ 46-18-203(7)(b), MCA, providing the sentencing structure for revocations, requires
credit only for “time served in a detention center or for home arrest time already served.”
As we noted in Tippets, ¶ 19, the term “detention center” is not defined in Title 46 despite
its appearance in § 46-18-203(7)(b), MCA. Under § 1-2-107, MCA, “[w]henever the
meaning of a word or phrase is defined in any part of th[e] code, such definition is
applicable to the same word or phrase wherever it occurs, except where a contrary intention
17
plainly appears.” Thus, we applied the definition of “detention center” as “a facility
established and maintained by an appropriate entity for the purpose of confining arrested
persons or persons sentenced to the detention center” contained in § 7-32-2241(1), MCA,
to § 46-18-203(7)(b), MCA. Tippets, ¶ 19. This definition does not incorporate time spent
in a treatment facility pursuant to a court order. As such, Keech is not entitled to credit for
31 days for time served in a treatment facility from November 23, 2002, to December 23,
2002.
CONCLUSION
¶26 Based on the foregoing, we reverse the District Court’s July 12, 2023 Order
Revoking Defendant’s Sentence and Amended Judgment and Commitment and remand for
the District Court to amend the judgment to grant an additional 2,220 days credit for time
served in addition to the 62 days credit for time served from February 24, 2023, to April 7,
2023, and the 1,167 days credit for elapsed time originally ordered by the court in its
July 12, 2023 order and judgment.
/S/ INGRID GUSTAFSON
We Concur:
/S/ KATHERINE M BIDEGARAY
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
18
Justice Laurie McKinnon, concurring.
¶27 I agree with the Court’s analysis. It is our constitutional obligation to consider the
amount of credit Keech is entitled to when the record, as here, is adequate and Keech asserts
a facially invalid sentence. We have noted that, “[c]onventional notions of finality of
litigation have no place where life or liberty is at stake and infringement of constitutional
rights is alleged.” Kills On Top v. State, 279 Mont. 384, 400,
928 P.2d 182, 192
(1996) (quoting Sanders v. U.S.,
373 U.S. 1, 8,
83 S. Ct. 1068, 1073 (1963)). This Court
has held that other procedural bars, such as limitations on habeas proceedings, may not
apply when a defendant's sentence is facially illegal. Lott v. State,
2006 MT 279, ¶¶ 20-22,
334 Mont. 270,
150 P.3d 337. As we stated in Lott, ‘“incarceration of an individual
pursuant to a facially invalid sentence represents a ‘grievous wrong,’ and a ‘miscarriage of
justice’” that warrants relief even if the defendant is otherwise procedurally barred. Lott,
¶ 22 (quoting Brecht v. Abrahamson,
507 U.S. 619, 637,
113 S. Ct. 1710, 1721 (1993);
State v. Perry,
232 Mont. 455, 462,
758 P.2d 268, 273 (1988)).
¶28 Regarding the Dissents’ discussion of our recent decision in Wolfblack, I would
simply point out that Wolfblack interpreted the portion of § 46-18-203(7)(a)(iii), MCA, that
held a sentence imposed upon revocation cannot be “a longer imprisonment or commitment
term than the original sentence. . . .” That portion of § 46-18-203(7)(a)(iii), MCA , remains
intact and has not been abrogated by the Legislature. In Wolfblack, we held that running a
revocation sentence consecutively to a sentence not in existence when the original sentence
was imposed constituted an illegal sentence under § 46-18-203(7)(a)(iii), MCA.
19
Wolfblack, ¶¶ 14-16. Wolfblack’s “commitment term” had been extended by more than
ten years beyond the commitment term of his initial sentence. Wolfblack, ¶ 13. Essentially,
Wolfblack was serving a “commitment term” in perpetuity. Wolfblack is the law, and stare
decisis cannot depend on the current composition of the Court or it will mean nothing; we
will be without rules of law and consistency. In his Dissent, Chief Justice Swanson
suggests overruling Wolfblack, even though no party has asked us to, but finds it
unnecessary because the Legislature has come “to our rescue.” Dissent, ¶ 15. Citing “[t]wo
important policies . . . of the law of the case doctrine: judicial economy and finality of
judgments[,]” Dissent, ¶ 3, the Chief Justice would bind a defendant to what this Court
knows is a facially illegal sentence under “the law of the case,” but would not bind the
Court to the rule of law under the doctrine of stare decisis, a doctrine equally based on
those same underlying policies of finality and judicial economy.
¶29 The 2025 Legislature attempted to amend § 46-18-203(7)(a)(iii), MCA, by adding
“[a] sentence imposed upon revocation must run consecutively to any other previously
existing sentence unless the suspended or deferred sentence that is being revoked ran
concurrently to the previously existing sentence. . . .” Whether this amendment
accomplishes anything remains to be seen. The additional language appears inconsistent
with the language that remains in the subsection this Court interpreted in Wolfblack. If a
challenge is made to -203, language within the subsection will have to be construed
consistently together––not only within the subsection itself, but with other Code provisions
and our caselaw, indeed the same caselaw correctly cited in Wolfblack and by the Court
20
today. The amendment appears to be unclear as to what constitutes a “previously existing
sentence.” Wolfblack held that a revocation sentence could not be consecutive to a sentence
that had not previously been imposed or was not in existence at the time of the initial
sentence. Wolfblack, ¶¶ 14-16. I suspect that more arguments will be brought forth to the
Court in construing the amendment to § 46-18-203(7)(a)(iii), MCA.
¶30 Thus, in my view and contrary to the Dissents’, the amendment to
§ 46-18-203(7)(a)(iii), MCA, is far from clear and will require this Court to consider the
statute as a whole, consistent with other statutory provisions and our established case law.
/S/ LAURIE McKINNON
Chief Justice Cory J. Swanson, concurring and dissenting.
¶31 I agree with the Opinion that the statute does not expressly grant Keech credit for
time served in a treatment facility on a revocation sentencing. I otherwise dissent from the
Opinion. Law of the case and our holding in Adams preclude us from even entertaining
Keech’s argument, and the Court’s reliance on Wolfblack perpetuates its error of law. I
would affirm the District Court.
¶32 This is Keech’s fourth attempt to convince us the District Court sentenced him
illegally so many years ago. We have repeatedly assessed all his facts and arguments on
three prior occasions, and rejected them. He is bound by the law of the case.
¶33 “‘When this Court, in deciding a case presented, states a principle or rule of law
necessary to the decision, such pronouncement becomes the law of the case and must be
21
adhered to throughout its subsequent progress, both in the trial court and upon subsequent
appeal.’” Diaz v. State, 2013 MT 219, ¶ 32,
371 Mont. 214,
308 P.3d 38 (quoting Winslow
v. Mont. Rail Link, Inc.,
2005 MT 217, ¶ 30,
328 Mont. 260,
121 P.3d 506);
see also Carlson v. N. Pac. Ry.,
86 Mont. 78, 81,
281 P. 913, 914 (1929). Two important
policies underlie the law of the case doctrine: judicial economy and finality of judgments.
State v. Gilder,
2001 MT 121, ¶ 10,
305 Mont. 362,
28 P.3d 488. While the doctrine is
discretionary, I would apply it here where Keech has already had three bites at the apple
and where the prior ruling was not clearly in error. Accord VanBuskirk v. Gehlen,
2021 MT
87, ¶ 15 n.15,
404 Mont. 32,
484 P.3d 924.
¶34 In Keech I in 2012, we affirmed the DOC’s sentence calculation that imposed the
First Judicial District’s revocation sentence consecutive to Keech’s sentence from the
Thirteenth Judicial District. In Keech II in 2013, we affirmed the Thirteenth Judicial
District Court’s denial of Keech’s petition for postconviction relief, wherein he argued he
had been illegally sentenced to two consecutive sentences instead of concurrent sentences.
In Keech III in 2013, we affirmed the First Judicial District Court’s disposition on Keech’s
revocation and reimposition of sentence, finding his Lewis and Clark County sentence was
correctly imposed consecutively to his Yellowstone County sentence. Now, suddenly, in
Keech IV, we not only say he was correct and order the sentences to be imposed
concurrently, but we say we were wrong on three prior occasions. And when did we
“discover” we were wrong? Eleven years after Keech III, when we decided Wolfblack. In
point of fact, Keech’s prior cases were correctly decided and only came into question after
Wolfblack changed the law and muddied a previously clear ruling.
22
¶35 This Court will rue the day when we decided there is no such thing as a final appeal
or a final decision on a case. We will encourage every litigant to keep on trying if they
don’t like the answer they receive the first, second, or third time, until we inevitably change
our minds and give them a different answer.
¶36 We were right on three prior occasions when we had all the facts of Keech’s
sentences that we have today. We should not countermand our prior rulings on this simple
matter of interpreting a court’s sentencing authority. Judicial economy and finality of
judgment should matter for something.
¶37 The second reason I dissent is because today we have extended an erroneous legal
interpretation in Wolfblack that has created the uncertainty and havoc Justice Rice
predicted in his dissent on that case. Wolfblack partially ignored and partially
misapprehended our precedent in Seals and Adams to hold a district court imposing a
sentence upon revocation could not order the sentence consecutive to a different district
court’s sentence because that was beyond that proceeding’s ambit and doing so would
extend the overall length of the defendant’s sentence. Wolfblack, ¶¶ 9, 14.
¶38 Seals dealt with a situation where a court had initially illegally sentenced a
defendant to 10 years for two crimes with statutory maximums of five years each. Seals,
¶ 4. The court used its discretion to make those two illegal sentences concurrent to each
other pursuant to § 46-18-401, MCA. Seals, ¶ 14. Unless a court orders otherwise,
separate sentences run consecutively. Section 46-18-401(1)(b), (4), MCA. When a
defendant is serving a suspended sentence and is sentenced on a new crime, that sentence
runs consecutive to the defendant’s suspended sentence as a matter of law—unless the
23
sentencing court orders otherwise. Seals, ¶¶ 4, 10, 14. Upon revocation of his sentence,
the District Court recognized it could not reimpose illegal 10-year sentences and instead
imposed five-year sentences on the two convictions but changed the sentences from
concurrent to consecutive to each other. Seals, ¶¶ 5, 11. Pursuant to the version of
§ 46-18-203(7)(c), MCA (1997), in effect at the time, a court on revocation of a suspended
sentence could “require the defendant to serve either the sentence imposed or any lesser
sentence.” The Seals district court could not reimpose the original sentence because it was
illegally twice the statutory limit. That left it with only the option of revoking the previous
sentence and imposing a lesser sentence—five years each on two counts, concurrent to
each other. Seals, ¶¶ 17–18.
¶39 Seals does not stand for the proposition the Court assigns to it in Wolfblack and here.
Seals dealt only with a previously illegal sentence, which, upon revocation, could not be
cured to fashion the sentencing court’s original intended effect of having a longer probation
period for the defendant. Once the sentencing court corrected the length of the sentence
(to 5 years instead of 10), it could not contradict the original sentence term of concurrent
sentences by making them consecutive. The two counts sentenced in Seals were in the
same court and the same case, not different courts and different cases as Keech presents.
Seals does not affect Keech’s situation or compel Wolfblack’s holding.
¶40 Adams, meanwhile, merely stands for the proposition that a defendant may not
challenge the legality of a sentence after it has been revoked; the challenge is limited to the
sentence imposed upon revocation. Adams, ¶¶ 17–20. We cited dicta from Seals, ¶ 15, in
stating, Ҥ 46-18-401, MCA, which governs the designation of a sentence as consecutive
24
or concurrent, is not part of the revocation sentencing provisions.”1 Adams, ¶ 19. We
nevertheless explained we did not reverse in Seals because the district court violated
§ 46-18-401, MCA, in ordering the two sentences consecutive to each other, but because
it had violated § 46-18-203(7), MCA, by imposing a greater term of sentence than
originally imposed. Adams, ¶ 19 n.4. Notably, we affirmed the revoked sentence in
Adams.
¶41 The rule to take from these two cases, then, is when a court revokes a suspended
sentence and reimposes a new sentence, it may not impose a sentence on that charge which
“includes a longer imprisonment or commitment term than the original sentence” pursuant
to § 46-18-203(7)(a)(iii), MCA. As we held in Seals, if the court originally sentenced a
defendant to concurrent sentences, it may not make those sentences consecutive upon
revocation, because that automatically extends the commitment term on whichever count
was changed from concurrent to consecutive. And if a defendant wishes to challenge the
consecutive or concurrent nature of two or more sentences, he or she must do so before the
sentence has expired or before being sentenced on a revocation. Adams, ¶¶ 18–20.
1
This sentence is dicta in Seals and is accurate as applied directly to his situation. It should not
be over-applied to the entirety of § 46-18-203(7), MCA, proceedings. Upon revocation and
resentencing, the district court can sentence a person on a suspended sentence to “either the
sentence imposed or any sentence that could have been imposed”; for a person on a deferred
imposition of sentence, the court can “impose any sentence that might have been originally
imposed.” Section 46-18-203(7)(a)(iii), (iv), MCA (emphasis added). Both of these italicized
provisions necessarily incorporate all the applicable sentencing statutes in Titles 45, 46, 61, 87,
MCA, or others, including consecutive or concurrent provisions, so long as they do not violate the
restriction on imposing a longer imprisonment or term of commitment than the original suspended
sentence. The statute does not support a blanket holding that consecutive or concurrent provisions
are entirely outside the scope of revocation proceedings.
25
¶42 The Court misapplied both of these cases in deciding Wolfblack. In addition to the
correct analysis in Justice Rice’s dissent, it is worth noting Wolfblack challenged the
consecutive nature of his sentence on a revocation proceeding, exactly what we held he
could not do in Seals and Adams. Wolfblack, ¶¶ 5–6. “The general authority to designate
a sentence to run concurrently is not within ‘the particulars’ of the revocation statutes and
is not an issue that could be addressed or ‘corrected’ during the 2012 revocation
proceedings.” Adams, ¶ 19 (quoting Seals, ¶ 15). Today, the Court repeats its Wolfblack
mistake by entertaining Keech’s challenge to his consecutive sentence on a revocation
proceeding, in contravention of the holding in Adams. Does the Court impliedly overrule
Adams and Seals today?
¶43 The Wolfblack Court also incorrectly interpreted Seals and § 46-18-203(7)(a)(iii),
MCA, to hold a court could not revoke a suspended sentence and re-sentence a defendant
if the net effect was a longer overall sentence on that case by virtue of being consecutive
to a new sentence from a different case. Wolfblack cited State v. Frazier, 2001 MT 210,
¶ 15,
306 Mont. 358,
34 P.3d 96, without noting it applied the 1987 revocation statutes,
which had evolved greatly by the time Wolfblack was decided. Frazier stated, “the court’s
authority encompasses the power to reimpose the original sentence via a combination of
imprisonment and suspension, both totaling no greater than the length of the original
sentence.” Frazier, ¶ 15. Then later Frazier held the district court could determine on a
revocation whether to impose the sentences concurrently or consecutively, and in fact
remanded the case back to the district court to make that determination. Frazier, ¶¶ 19–
20. Clearly, it was applying a statute from a different era, which had changed greatly by
26
2024. Yet this apples citation from Frazier, selectively applied to oranges in Wolfblack, is
what led the latter majority to hold the revocation sentence “could not be a longer term of
commitment than the initial sentence. Changing the sentence to make it consecutive
increased the original sentence.” Wolfblack, ¶ 14.
¶44 This is absurd, as Justice Rice pointed out in his dissent. The term of the sentence
remained five years upon revocation, the District Court did not increase it. The overall
duration of the sentence was longer because Wolfblack received a new, partially custodial
sentence in Lewis and Clark County on a new criminal offense, which ran until it was
discharged in 2021. Wolfblack, ¶ 6. Wolfblack then resumed serving the remainder of his
original suspended sentence from Flathead County, which was subsequently revoked and
led to his appeal. Wolfblack, ¶ 6. The Wolfblack Court attempted to save the defendant
from the logical consequences of repeat criminal activity: he will receive new sentences
that inevitably stack up and extend his time in custody or on probationary supervision. In
doing so, the Court committed manifest error.
¶45 However, I need not convince the Court to recognize its error and overrule its
holding in Wolfblack. The Legislature came to our rescue. “If the Legislature disagrees
with our interpretation of a statute, it is free in the exercise of its constitutional prerogative
to override our interpretation and effect the proper legislative intent.” S.W. v. State,
2024 MT 55, ¶ 21,
415 Mont. 437 (citing State v. Spagnolo,
2022 MT 228, ¶ 8,
410 Mont.
457,
520 P.3d 330; State v. Running Wolf,
2020 MT 24, ¶ 23,
398 Mont. 403,
457 P.3d
218) (cleaned up); see also Running Wolf, ¶¶ 21–25 (highlighting when manifestly wrong
decisions should not be followed and discussing postdecision legislative amendments as
27
instructive); Bottomly v. Ford, 117 Mont. 160, 167–68,
157 P.2d 108, 112 (1945)
(“Generally, of course, legislative intent is indicated by its action rather than by its failure
to act.”); Shambie Singer & Norman J. Singer, 3C Sutherland Statutes & Statutory
Construction § 78:4 (8th ed.) (“Conversely, when a legislature amends a statute following
a judicial decision construing the statute, courts presume the legislature amended the statute
with that decision in mind.” (collecting cases)).
¶46 In the legislative session following Wolfblack, the Legislature amended
§§ 46-18-203(7)(a)(iii) and -401(5), MCA, to clearly state any sentence imposed upon
revocation “must run consecutively to any other previously existing sentence unless the
suspended or deferred sentence that is being revoked ran concurrently to the previously
existing sentence.” 2025 Mont. Laws ch. 324. Representative Overstreet, the legislation’s
sponsor, made clear the bill was brought “to fix something that the Montana Supreme Court
did in a case called Wolfblack.” Hearing on H.B. 612, before House Jud. Comm., 69th Leg.
Reg. Sess. at 9:40:02–9:40:05 (Feb. 26, 2025).
¶47 It appears our interpretation of § 46-18-203(7)(a)(iii), MCA, in Wolfblack is
manifestly wrong and we should take this opportunity to recognize the Legislature’s act to
overrule it. Accord Running Wolf, ¶ 22. Barring that act of judicial self-correction, we can
merely hold on until the effective date of the legislative amendment.
¶48 As applied to Keech, this Court should reject his argument to change a consecutive
or concurrent sentence on a revocation appeal, because it is barred by Adams and by the
law of the case, as argued above. Even if we were to consider its merits, we should hold
the District Court legally sentenced him upon revocation and the DOC properly construed
28
the sentence to run consecutively to his new criminal sentence imposed in Yellowstone
County as a matter of law, pursuant to § 46-18-401, MCA. As we correctly held in Seals,
the revocation statutes do not allow a court to change sentences from concurrent to
consecutive in an individual case. But that holding does not extend to preventing a court
from imposing a revocation sentence consecutive to a new criminal sentence in a different
case. See Dissent, ¶ 40 n.1. This is consistent with, indeed compelled by, the Legislature’s
recent action to correct our error. It also happens to be consistent with this Court’s correct
resolution of this case on three prior occasions.
¶49 Finally, any changes to Keech’s sentence should come from a district court
recalculation of this complicated record, not from this Court’s calculations. Even if the
Court does not adopt my reasoning, it should remand the matter to the District Court rather
than grant credit that may be incorrect on Keech’s fourth (and hopefully final) trip to the
Supreme Court.
/S/ CORY J. SWANSON
Justice Jim Rice, concurring in part and dissenting in part.
¶50 While the Court’s opinion and the Chief Justice’s Dissenting opinion reach different
conclusions, both opinions state principles about the application of res judicata, or
preclusion of re-litigated claims in criminal cases, which are correct. I endeavor herein to
fill in what I perceive are gaps between the opinions to illustrate that point, and to offer an
application of those principles to this case.
29
¶51 The Court’s opinion focuses on what it terms the interest of justice “exception” to
the application of preclusion principles. Opinion, ¶ 18. The Court states that a facially
invalid sentence “presents the rare and exceptional situation where the procedural bar of
res judicata should not apply because justice demands that we not permit a facially illegal
sentence to stand.” Opinion, ¶ 18 (citing Ayers v. Seventh Judicial Dist. Ct., No.
OP 12-0763, 369 Mont. 541,
310 P.3d 1098 (Feb. 26, 2013)). Focusing upon an
“exception” without providing the broader context of the general rule may give the
impression that the “exception” is the rule, i.e., that res judicata is never or rarely
applicable, either in criminal cases generally, or in sentencing cases specifically. That
would be an incorrect assessment of the law. The Dissent is correct that res judicata or
other preclusion principles may properly bar certain criminal claims.1 See Montgomery v.
State,
2016 MT 169, ¶ 13,
384 Mont. 120,
375 P.3d 403 (“Montgomery has previously
raised the same arguments he now raises as to the legality of his convictions and sentences.
‘[C]laim preclusion’ refers to the preclusive effect of a judgment and forecloses litigation
of matters that should have been raised in earlier, timely proceedings.” (citing State v.
Perry,
232 Mont. 455, 464,
758 P.2d 268, 274 (1988) (internal citation omitted), overruled
in part on other grounds, State v. Clark,
2005 MT 330, ¶¶ 30-32,
330 Mont. 8,
125 P.3d
1099 (“[O]nce a party has had full opportunity to present a claim or issue for judicial
decision in a given proceeding, the judgment of that court will be deemed final as to all
1
As we explained in Southwick, regarding successive litigation in the criminal context, “whether
labeled res judicata or law of the case, the effect is the same.” Southwick, ¶ 15, n.1 (citing State
v. Van Dyken,
242 Mont. 415, 426,
791 P.2d 1350, 1356 (1990)).
30
claims or issues which have been raised or which fairly could have been raised.”))). Indeed,
as noted in the Court’s articulation of the governing standards, it is to be the “rare and
exceptional situation” where res judicata does not apply. Opinion, ¶ 18; Southwick, ¶ 19.
¶52 The Court cites the statement in Kills on Top, 279 Mont. at 400,
928 P.2d at 192,
that “[c]onventional notions of finality of litigation have no place where life or liberty is at
stake and infringement of constitutional rights is alleged.” Opinion, ¶ 18. This statement
is correct, but placed in context, the Court was there speaking narrowly to death penalty
claims at issue in that case, and, in contrast, applied res judicata to bar all of the Defendant’s
other claims—which also alleged infringement of constitutional rights that deprived the
Defendant of life and liberty—because “the ends of justice are not served by reaching the
merits of the petitioner’s claims a second time. Therefore, the District Court's conclusion
that petitioner’s claims numbered 1, 4, 5, 9, 10, and 14 are barred by res judicata is
affirmed.” Kills on Top,
279 Mont. at 400,
928 P.2d at 192. Kills on Top well illustrates
that res judicata is a broadly governing principle in the criminal law.
¶53 The general rule is that “[w]e apply res judicata to bar re-litigation of issues in
criminal cases.” Southwick, ¶ 17. In Montgomery, we articulated the applicable test as
drawn from our case precedent:
The doctrine of res judicata bars relitigation of issues in criminal cases if
three criteria are met:
(1) the same ground presented in the subsequent application was
determined adversely to the applicant on the prior application,
(2) the prior determination was on the merits, and
31
(3) the ends of justice would not be served by reaching the merits
of the subsequent application.
Montgomery, ¶ 12 (citing Kills on Top, 279 Mont. at 399,
928 P.2d at 192; Southwick, ¶ 17;
State v. Baker,
272 Mont. 273, 282,
901 P.2d 54, 59 (1995)). Thus, the interest of justice
“exception” referenced by the Court is also the third factor of the test a court must consider
in making a res judicata determination. The test includes two objective factors, that the
“same ground” was previously “determined adversely,” and that the determination was “on
the merits”; and one factor that is essentially subjective, a discretionary assessment by the
court of the case circumstances to determine whether “the ends of justice would not be
served by reaching the merits” a second time. Montgomery, ¶ 12.
¶54 In cases like Keech’s, involving sentence credit for time served, a critical
consideration for a court’s assessment of the “ends of justice” factor is the constitutional
right of habeas corpus. The Court discussed the habeas writ extensively in Lott, as related
to a challenge to a statutory provision procedurally barring habeas relief to a person “who
has been adjudged guilty of an offense in a court of record and has exhausted the remedy
of appeal.” Section 46-22-101(2), MCA; Lott, ¶¶ 18-22. The Court concluded that, “as
applied to a facially invalid sentence—a sentence which, as a matter of law, the court had
no authority to impose—the procedural bar created by § 46-22-101(2), MCA,
unconstitutionally suspends the writ.” Lott, ¶ 22; Southwick, ¶ 18; see Mont. Const.
art. II, § 19 (“The privilege of the writ of habeas corpus shall never be suspended.”). The
Court extended habeas relief to incarcerated persons who demonstrated they were not
properly credited for time served toward their sentences in a manner that would affect their
32
date of release from incarceration. See MacPheat v. Mahoney, 2000 MT 62, ¶ 5,
299 Mont.
46,
997 P.2d 753 (“MacPheat contends that, had he received all of the good-time credit to
which he was entitled, he would have discharged his sentence on January 5, 2000. . . . If,
in fact, MacPheat has discharged his sentence but is still imprisoned, then habeas corpus
relief is available as he is being unlawfully imprisoned and restrained of his liberty.”).
Thus, a claim for service credit toward a sentence can implicate the right of habeas corpus,
and thereby also satisfy the “ends of justice” consideration which prevents the application
of res judicata. “When a criminal defendant is potentially subject to a facially illegal
sentence, the ends of justice suggest that res judicata should not bar rehearing of the issues,
even if the first two criteria are met.” Southwick, ¶ 17.
¶55 However, that the constitutional right of habeas corpus is not subject to general
suspension does not mean that courts are handcuffed and forced to consider issues that
were previously addressed and resolved on the merits in every claim or proceeding. Courts
need not be subjected, for example, to repetitive successive litigation or frivolous legal
claims that can abuse the judicial system. See Kills on Top,
279 Mont. at 398-99,
928 P.2d
at 191 (citations omitted) (“The doctrine of res judicata bars reconsideration in a post-
conviction relief proceeding of claims previously raised and considered on direct appeal,”
citing judicial finality and economy as the policies undergirding the doctrine.). As
Southwick stated, a claimed facially illegal sentence “suggests” that res judicata is not
applicable; it does not mandate such a conclusion in all cases. Southwick, ¶ 17. We have
commonly applied res judicata to bar repetitive litigation, including to claims of a facially
illegal sentence, and have done so even within a habeas proceeding. In Rodriguez v.
33
Salmonsen, the Defendant filed a petition for habeas relief, challenging his sentence as
illegal, along with raising other claims. Rodriguez v. Salmonsen, No. OP 23-0227, 412
Mont. 552,
530 P.3d 1270 (May 2, 2023). We explained that “this Court recently addressed
these same arguments last year,” and “determined that Rodriguez’s arguments lack merit.”
Citing Montgomery, we explained that, while Rodriguez was challenging the legality of his
sentence in a habeas proceeding, his claims were nonetheless barred by res judicata:
The doctrine of res judicata is typically inapplicable in habeas corpus
proceedings. Montgomery v. State, 2016 MT 169, ¶ 11,
384 Mont. 120,
375 P.3d 403. We point to the exception, applicable here.
We have stated that “[r]es judicata cannot be applied in such a manner
as to deprive [a petitioner] of the right to file a post-conviction
procedure. However, res judicata can be used to bar the rehearing of
issues already litigated under the rule in Sanders.” Coleman [v.
State], 194 Mont. [428,] 438, 633 P.2d [624,] 630 (citing Sanders [v.
United States], 373 U.S. [1,] 15, 83 S. Ct. [1068,] 1077, 10 L. Ed. 2d
148). See Dawson v. State,
2000 MT 219, ¶ 162,
301 Mont. 135,
10
P.3d 49 (“The doctrine of res judicata may also pose a procedural bar
to postconviction relief.”). [(Emphasis added.)]
Montgomery, ¶ 11. We conclude that the doctrine of res judicata applies
because Rodriguez continues to raise arguments already litigated.
Rodriguez, **3-4. Indeed, in Kills on Top, we explained that we had applied res judicata
to deny review of arguments challenging a death sentence when the arguments had
previously been resolved on the merits. See Kills on Top, 279 Mont. at 399,
928 P.2d at
191 (“The doctrine of res judicata has, in fact, been extended to petitions for
postconviction relief in death penalty cases in spite of the argument that ‘[t]he Due Process
clause of the Fourteenth Amendment requires greater reliability of judgments in capital
cases.’” (citing Fitzpatrick v. State,
194 Mont. 310, 317,
638 P.2d 1002, 1006 (1981))).
34
¶56 Keech’s appeal includes a new claim for the time served prior to his original
sentencing in January 2003. Although it involves a relatively small amount of time, the
claim helps to illustrate the principles at issue here. The Dissent correctly notes that a
defendant cannot use a revocation proceeding to challenge an originally imposed sentence,
and can only timely challenge the revocation sentence at issue. Dissent, ¶¶ 41-42. The
Court notes the same principle. Opinion, ¶ 14 (discussing Adams). Thus, Keech’s request
for additional service credit toward his original sentence should not be addressed in this
appeal. He may well have a habeas corpus claim for that credit, but even then he must
satisfy his burden to demonstrate that the ends of justice would be served by reaching the
issue, given the litigation history. Keech’s claim for this time served was immediately
objectionable and then appealable, but he did neither. In the following 22 years, Keech
litigated his sentences repeatedly, and had multiple opportunities to make this claim, but
did not, thus raising the possible application of res judicata: “once a party has had full
opportunity to present a claim or issue for judicial decision in a given proceeding, the
judgment of that court will be deemed final as to all claims or issues which have been raised
or which fairly could have been raised.” Perry, 232 Mont. at 464,
758 P.2d at 274
(emphasis added); see Montgomery, ¶ 13.
¶57 The bulk of Keech’s claim for additional service credit is premised upon his
contention that his sentences were to run concurrently instead of consecutively, despite our
decisions to the contrary in Keech I and Keech III. The Dissent makes insightful points
about the application of § 46-18-401, MCA, and the Court’s decisions in Seals, Adams,
and Wolfblack. The State does not ask for Wolfblack to be overruled, although as the
35
Dissent notes, it has been legislatively overruled, and we wait for the effective date of the
correction. The State does express its disagreement with “the [Wolfblack] Majority’s []
conclusion that the revocation court improperly changed Wolfblack’s sentence to run
consecutively.” This point is one that distinguishes Wolfblack from this case and provides
for me a reason that the ends of justice compel that we reach the merits and not apply res
judicata. The subsequent sentence in Wolfblack was to run consecutively to Wolfblack’s
original sentence as a matter of law, a conclusion from which the Court departed. Here, as
we have now determined, Keech’s subsequent sentence was to run concurrently to his
original sentence as a matter of law. Our decisions to the contrary in Keech I and Keech III
were, in effect, a misapplication of the statutes that we are here correcting. And, of course,
any disagreement I or the Legislature may have with any of the Court’s decisions should
not inure to Keech; he is entitled to the benefit of those decisions as long as they are in
effect.
¶58 What further convinces me is that the concurrent or consecutive nature of Keech’s
March 2009 revocation sentence was not evident from the face of that judgment. Had that
judgment stated that it was ordered to run consecutively with his November 2008
Yellowstone County sentence, Keech could have challenged that provision on appeal.
However, the judgment was silent, and there was essentially nothing to appeal in that
regard. Rather, it was not until the Department of Corrections administratively deemed the
sentences to run consecutively that Keech became aware of the issue, and he responded by
properly filing a petition for habeas corpus challenging the Department’s determination.
His petitions led to our decisions in Keech I and Keech III, which were incorrect.
36
Consequently, I believe Keech has established that the ends of justice require that res
judicata not be applied in his case.
¶59 However, I agree with the State’s argument that the case be remanded for further
proceedings and would so order. As the State notes, the record in this case is very
complicated, made so by Keech’s continuous criminal behavior over many years. The
calculations in this case are not simple. At the hearing herein, the parties stipulated to the
amount of lapsed time based upon their mutual assumption that the 2009 revocation
sentence correctly ran consecutively with the Yellowstone County sentence. Given this
Court’s determination, a new judgment must be entered and new calculations made for
which the parties may once again find agreement. If not, any issues may be brought to the
District Court as factfinder. This Court should not undertake its own factfinding,
particularly in cases this complex. I remember well the time when justices sat in their
offices, with high piles of sentencing documents, but without the assistance of habeas staff,
and performed individual calculations of good time sentencing credits with paper and
calculator, in order to respond to habeas petitions. The task took substantial time from
other judicial duties, and demonstrated well that an appellate court is not designed to be a
factfinder by committee, leading the Court to, initially, order habeas petitions to be filed
with districts courts, followed by reversing course and ordering the Department of
Corrections to make initial good time credit calculations for the Court’s review.2 While
2
Ultimately, the Legislature repealed the good time statute.
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thankful for the Legislature’s funding of a necessary habeas staff position, I would urge
the Court to not return to our sentencing factfinding days.
¶60 I concur and dissent.
/S/ JIM RICE
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