State v. Keaton
35,052
N.M. Ct. App.
Aug 1, 2017
Check Treatment

*1

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee,

V.

No. 35,052

MICHAEL STEPHEN KEATON,

6 Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY

8 Karen L. Parsons, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Anne Kelly, Assistant Attorney General

12 Albuquerque, NM 13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 Nina Lalevic, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant

MEMORANDUM OPINION

SUTIN, Judge.

*2 1 (1) Defendant Michael Keaton appealed as a self-represented litigant from the 2 district court's order denying his motion to reconsider the sentence. [3 RP 523] This 3 Court's second calendar notice proposed to reverse and remand to the district court 4 for an evidentiary hearing on certain issues outlined therein. [CN 7] The State filed 5 a "Notice of Non-Filing a Memorandum in Opposition." [Ct. App. File, top document] 6 The State agrees with this Court's determination that the conclusive presumption of 7 ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 8 N.M. 231, 731 P.2d 374, does not apply in this context. [MIO 2] However, due to the 9 unique circumstances of this case, the State does not oppose remand to the district 10 court for consideration of the issues identified in this Court's second calendar notice. 11 [Id.] 12 (2) For these reasons and those stated in this Court's second calendar notice, we reverse and remand to the district court. 14 (3) IT IS SO ORDERED.

JONATHAN B. SUTIN, Judge

WE CONCUR:

*3 1 LINDA M. VANZI, Chief Judge

2 3 J. MILES HANISEE, Judge