NM man still in prison despite judge’s release order

Corrections Department said to be considering ruling’s legality

A New Mexico man convicted of rape in 2007 remains in prison, despite a judge’s order last month to release him immediately.

A Corrections Department spokesman said the department is looking into the legality of the judge’s order.

Johnny Malone, 37, is currently being held at the Otero County Prison Facility. In April 2007, he pleaded guilty to one count of criminal sexual penetration and one count of kidnapping and was sentenced to six years in prison, followed by two years of parole and five years of supervised probation.

But in 2012, Malone violated his probation and, as a result, his sentence was changed to require five to 20 years of parole. Kenneth Stalter, Malone’s attorney, said Malone was given in-house parole, meaning he’s serving it in custody.

On Dec. 17, Judge Douglas Driggers of the 3rd Judicial District Court in Las Cruces ordered Malone’s immediate release after determining that his sentence was illegally modified in 2012.

“With this corrected parole period, Mr. Malone has fully completed his sentence in this matter and shall be immediately released from the custody of the New Mexico Corrections Department,” Driggers wrote.

Despite the judge’s order, Stalter says Malone is still in prison. He sent a letter to Corrections Department Secretary Alisha Tafoya Lucero and Otero County Prison Facility Warden Rick Martinez on Friday, asking for Malone’s immediate release.

“There are no other cases under which Mr. Malone may be held. Yet he remains in custody at the Otero County Prison Facility,” Stalter wrote. “The continued detention of Mr. Malone violates the Court’s order and the United States and New Mexico constitutions.”

Corrections Department spokesman Eric Harrison said in a statement the agency “is aware of the judge’s order and has been in communication regarding the legality of the order with the prosecutor and the defense attorneys.”

Stalter said he does not know when Malone might be released.

“They know he’s supposed to be released, but there’s some sort of administrative issue where they’re just physically not letting him out, and nobody is letting us know why,” Stalter said.

In April 2003, Malone was convicted on one count of criminal sexual penetration of a child and one count of contributing to the delinquency of a minor in a separate case, court records show.