State v. Keaton

SUTIN, Judge.

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons
, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM for Appellant

SUTIN, Judge. {1} Defendant Michael Keaton appealed as a self-represented litigant from the district court's order denying his motion to reconsider the sentence. This Court's second calendar notice proposed to reverse and remand to the district court for an evidentiary hearing on certain issues outlined therein. [CN 7] The State filed a "Notice of Non-Filing a Memorandum in Opposition." [Ct. App. File, top document] The State agrees with this Court's determination that the conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374, does not apply in this context. [MIO 2] However, due to the unique circumstances of this case, the State does not oppose remand to the district court for consideration of the issues identified in this Court's second calendar notice. [Id.] {2} For these reasons and those stated in this Court's second calendar notice, we reverse and remand to the district court.

/s/ _________

JONATHAN B. SUTIN
, Judge