A man sentenced to prison in 2017 for fatally shooting a woman outside his home in Taos is trying to persuade the courts that he should be temporarily transferred to house arrest.
He says he is at a high risk for developing COVID-19 in prison.
Two and a half years into a 16-year sentence at Central New Mexico Correctional Facility in Los Lunas for second-degree murder, Micola Sopyn filed a motion through his attorney, Scott Davidson, on April 23, asking the courts to release him to one of two of his family members in the state.
The motion notes several underlying health conditions, which Sopyn says place him in a high-risk group for developing a life-threatening case of the disease caused by the novel coronavirus.
During a remote hearing held before Judge Jeff Shannon in Taos District Court on Tuesday (June 16), Sopyn also said that few precautions are being taken to protect inmates from contracting the virus in the state facility. Those that are in place, he said - such as wearing masks when walking down prison hallways - are loosely enforced.
Carmela Starace, a prosecutor with the 8th Judicial District Attorney's Office, is continuing to fight the motion on behalf of the state, basing her argument, in large part, on the fact that Sopyn repeatedly violated a prior house arrest order while he was awaiting trial in the murder case.
She also said that Davidson filed the motion improperly under a rule over which district courts have no jurisdiction.
Weighing the risks
Many of the underlying health conditions Davidson cites in the motion to release Sopyn, 68, are the result of a motorcycle accident that nearly killed him in 2015 - while he was on house arrest. Sopyn had his spleen removed after undergoing surgery for the incident, an organ critical to fighting off infections. He also had major surgery on one of his legs.
But the ill-fated ride was also one of several instances in which Sopyn violated his conditions of release prior before he was convicted for shooting and killing 38-year-old Amber Hava in 2014 during a dispute over drugs at his home on Doña Ana Drive.
While awaiting trial, Sopyn also took a trip out of Taos County to Sandia Resort and Casino in Albuquerque, according to Taos News archives. He tested positive for narcotics, including methamphetamine, during a subsequent drug test.
Sopyn also was accused of violating his house arrest and testing positive for alcohol a total of 11 times. He was convicted of DWI in 2015. In one instance, he was accused of cutting off a GPS ankle monitor assigned to him by the state.
Starace argued that Davidson has so far offered no medical evidence of the conditions that put Sopyn at risk for COVID-19. She said that an order signed by Gov. Michelle Lujan Grisham earlier this year to commute sentences of some prisoners at a heightened risk for developing the disease "wouldn't even touch him."
She cited several disqualifying criteria in the order as evidence, including having an "enhancement charge" added to a sentence (Sopyn's sentence was enhanced by one year for possessing a firearm). She also said that inmates with DUIs on record are disqualified, but Judge Shannon noted that the criteria may only apply when a sentence an inmate is serving is specifically for DWI, rather than simply having a prior conviction for the crime.
Starace agreed that the order could be "read" that way, but said the "spirit" of the criteria seemed clear: The governor did not want more people with a propensity for driving while intoxicated back out on the streets.
No confirmed case of the novel coronavirus has so far been reported at the Los Lunas facility where Sopyn is serving his sentence, which is a special "geriatric" ward housing inmates 65 and older.
Earlier this year, representatives from the New Mexico Public Defender's Office had asked the New Mexico Supreme Court to expand the qualifying criteria in the governor's order for commuted sentencing to include inmates over 65, but were denied.
Starace said that testing protocols for the novel coronavirus are rigorous in state prisons. All new inmates receive a complete test for the virus before they join the general prison population. Inmates also undergo a mandatory 14-day quarantine period before joining other inmates, she said.
At Sopyn's facility, she added that no new inmates are being admitted while the state remains in the midst of the pandemic. Staff, she said, require two negative tests before being placed back on duty.
"Extraordinary steps are being taken to make sure Mr. Sopyn is not exposed to COVID," she said.
One inmate, however, has tested positive in another part of the prison complex where Sopyn is being held, according to the New Mexico Department of Health. The state also reports one case at Northwest New Mexico Correctional Facility in Cibola County, one at Penitentiary of New Mexico in Santa Fe County and 298 at the Otero County prison facility.
Speaking from prison on Tuesday, Sopyn said his facility is cleaned poorly and irregularly. He said inmates are sometimes made to stand "shoulder to shoulder," when social distancing protocols have recommended spacing of six feet.
He also said he and other inmates have only been provided with a single mask. The building where he is housed is not physically separate from the rest of the prison, and so people can "come and go," he said. During a medical exam, he said a prison nurse suggested to him that the novel coronavirus wasn't a real threat, he said.
But for Sopyn, he and his attorney are arguing in the motion that the new virus could be a matter of life or death if he remains in prison.
"I just fear for my life mainly because of my spleen not being able to fight off infection," Sopyn said. "The facility at UNMH, the infectious disease, should confirm that I am at extreme high risk."
Starace made it clear she will continue to fight the motion and referenced an article published by Harvard Medical School in April that suggests that people whose spleens have been removed may not be at higher risk for COVID-19.
Due to technical difficulties and multiple issues raised during the hearing, Judge Shannon chose to continue it next Monday (June 22) at 1:30 p.m.