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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. No. 35,052 MICHAEL STEPHEN KEATON, 6 Defendant-Appellant.

7 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 18 MEMORANDUM OPINION SUTIN, Judge.

1 {1} Defendant Michael Keaton appealed as a self-represented litigant from the district court’s order denying his motion to reconsider the sentence. [3 RP 523] 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 8 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.

11 [Id.] {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.

15 __________________________________ 16 JONATHAN B. SUTIN, Judge

17 WE CONCUR:

18 _______________________________ LINDA M. VANZI, Chief Judge

2 _______________________________ J. MILES HANISEE, Judge