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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. A-1-CA-36236 GERALD JOHNSON, JR., 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker, District Judge Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee Law Office of Scott M. Davidson, Ph.D Scott M. Davidson Albuquerque, NM for Appellant 17 MEMORANDUM OPINION VIGIL, Judge.

1 {1} Defendant Gerald Johnson, Jr. appeals following re-sentencing upon remand by this Court and asserts on appeal the district court erred by denying him the opportunity to allocute and to present mitigating evidence at his resentencing. [3 RP 553; DS 3-4] This Court issued a notice proposing to summarily reverse. [CN 1, 3-4] The State filed a response indicating it will not file a memorandum in opposition to our notice of proposed disposition. Therefore, based on the reasons set forth in this Court’s notice of proposed disposition, we reverse.

8 {2} IT IS SO ORDERED.

9 _________________________________ 10 MICHAEL E. VIGIL, Judge

11 WE CONCUR:

12 ____________________________ LINDA M. VANZI, Chief Judge

14 ____________________________ STEPHEN G. FRENCH, Judge