State v. Keech (2025): Revocation Sentences, Concurrent–Consecutive Designations, and the “Facial Illegality” Escape Hatch from Res Judicata

Introduction

State v. Keech, 2025 MT 169, is a sweeping Montana Supreme Court opinion that harmonises three doctrinal strands:

1. Statutory priority between § 46-18-203, MCA (sentencing on revocation) and § 46-18-401, MCA (general consecutive/concurrent rule).
2. The continuing vitality of the “facial illegality” exception that allows courts to disregard res judicata and the “law-of-the-case” doctrine when a sentence is inherently unlawful.
3. The mandatory nature of credit for time served and elapsed (“street”) time in revocation proceedings.

Roger Michael Keech’s tortured sentencing history—spanning two counties, multiple revocations, and three prior trips to the Supreme Court—provided the factual canvas. Ultimately, the Court reversed a 2023 revocation judgment and mandated an additional 2,220 days of credit, holding that the Department of Corrections (DOC) and lower court had impermissibly transformed a sentence that was supposed to run concurrently into one that ran consecutively.

Summary of the Judgment

• Disposition: Reversed and remanded with directions to award 2,220 more days of credit (on top of 1,229 days already granted).
• Key holding (new precedent): When a court revokes a suspended sentence, § 46-18-203, MCA, controls. The revocation court may not covertly lengthen the defendant’s “commitment term” by invoking § 46-18-401’s default-consecutive rule. If the original judgment was silent, DOC may not unilaterally deem the revocation sentence consecutive.
• Secondary holding: “Facially illegal” sentences pierce both res judicata and law-of-the-case barriers; prior Supreme Court orders (Keech I & Keech III) that perpetuated the illegality were disavowed.

Analysis

Precedents Cited and Their Influence

1. State v. Seals, 2007 MT 71
   • First articulated that § 46-18-401 is “not applicable to the revocation matter” because revocation is “expressly governed” by § 46-18-203.
   • Important because Seals invalidated a revocation sentence that made previously concurrent counts consecutive, exceeding the original “commitment term.”
2. State v. Adams, 2013 MT 189
   • Confirmed Seals and added timing nuance: a defendant who waits until revocation to attack the original sentence is limited to § 46-18-203 parameters; general sentencing statutes are off-limits.
3. State v. Wolfblack, 2024 MT 166
   • Re-emphasised that changing a revocation sentence from concurrent to consecutive is facially illegal under § 46-18-203(7)(a)(iii). Keech relies heavily on Wolfblack.
4. State v. Southwick, 2007 MT 257
   • Source of the statement that res judicata does not apply to facially illegal sentences.
5. Keech I (2012), Keech II (2013), Keech III (2023)
   • Earlier proceedings where Keech’s arguments failed. The 2025 Court explicitly overruled portions of Keech I & Keech III as inconsistent with Seals/Adams.

Core Legal Reasoning

1. Statutory Hierarchy.
   • § 46-18-203(7), MCA, contains an express limit: upon revocation, the court cannot impose “a longer imprisonment or commitment term than the original sentence.”
   • Because the defendant’s Lewis & Clark revocation sentence of 16 years (11 suspended) exceeded this limit once DOC treated it as consecutive, it became facially illegal.
2. Ill-Applied Default Rule.
   • DOC cited § 46-18-401(4) (“sentences run consecutively unless the court orders otherwise”) to justify treating the silent 2009 judgment as consecutive. The Court calls this a ‘misuse,’ because § 46-18-401 yields when § 46-18-203 is triggered.
3. Res Judicata Override.
   • The State invoked “law of the case” and “res judicata,” arguing Keech had lost the same argument in Keech I & Keech III.
   • The Court applied Southwick’s “facially illegal sentence” exception: justice overrides finality when liberty is at stake.
4. Mathematical Imperative.
   • Time-served credit is “a legal mandate,” not discretionary (citing Pennington, 2022 MT 180).
   • After detailed calendar calculations, the Court added 2,220 days:
     • 1,212 days of incarceration during suspended periods later deemed concurrent.
     • 892 days conceded by State.
     • 84 days bridging the two county cases.
     • 32 days linked to a detainer warrant.
     • Rejected 31 days of treatment-facility time (not a ‘detention center’ under § 7-32-2241, MCA).

Projected Impact

• System-wide recalculations. DOC must ensure that § 46-18-203 controls whenever a revocation judgment is silent on concurrency. Numerous inmates with similar fact patterns could seek recalculation.
• Plea-bargaining sensitivity. Prosecutors must draft plea agreements and revocation stipulations that state concurrency/consecutivity with precision; silence now presumptively favours defendants.
• Res judicata boundaries clarified. While the case reaffirms the importance of finality, it also signals courts will reopen cases when a sentencing error is “facial,” even after multiple prior appeals or habeas petitions.
• Legislative response. The opinion references 2025 legislative amendments to § 46-18-203(7)(a)(iii) & ‑401(5) (effective 2026) that would codify a default-consecutive rule post-revocation. Future litigation will test that amendment’s coexistence with the remaining cap on “longer commitment terms.”

Complex Concepts Simplified

Consecutive vs. Concurrent Sentences

Consecutive sentences are stacked end-to-end; concurrent sentences run at the same time. One day in jail can satisfy multiple concurrent counts but only a single consecutive count.

Revocation (“§ 46-18-203”) Proceedings

Occurs when a defendant violates probation/suspended conditions. The judge must choose among: continue suspension, modify conditions, or revoke and impose a custodial sentence—but cannot exceed the original commitment term.

Facially Illegal Sentence

A sentence that is unlawful on its face—e.g., exceeds statutory maximum, lacks statutory authority, or, as here, extends commitment beyond what § 46-18-203 permits. No evidentiary hearing is needed to recognise the defect.

Res Judicata / Law of the Case

Judicial doctrines prohibiting relitigation of matters already decided. They conserve resources and promote finality but yield when continuing incarceration rests on a facially invalid judgment.

Credit for Time Served vs. Elapsed (“Street”) Time

Time served: Physical days spent in jail/prison/detention.
Elapsed time: Days spent on probation (“street”) that count toward sentence discharge. Both are statutory entitlements but measured differently.

Conclusion

State v. Keech cements two interlocking propositions in Montana sentencing law:

1. Priority Rule: In revocation settings, § 46-18-203 is lex specialis and trumps the default consecutive rule of § 46-18-401. Silence cannot be used to lengthen a defendant’s term.
2. Justice over Finality: Even after several appellate defeats, a prisoner may reopen a closed case if the sentence is “facially illegal.” The judiciary’s duty not to perpetuate unlawful incarceration outweighs the doctrines of repose.

Practitioners should treat revocation sentencing as a specialised domain with its own statutory guardrails. Clear concurrency clauses, vigilant credit calculations, and respect for § 46-18-203’s limits are now obligatory—not optional—if judgments are to withstand scrutiny.