A Philadelphia judge said Wednesday that he cannot vacate a plea deal and sentence already negotiated by the District Attorney’s Office for a gunman who shot and critically wounded a West Philadelphia beer deli owner with an AK-47 rifle.

Common Pleas Court Judge Rayford Means said he felt constrained by case law, given that it was a done deal, according to a source in the justice system who was in the courtroom at the time. Means said he would schedule a Feb. 11, 2019, hearing for the victim to go to court and give a victim-impact statement.

No hearing had been scheduled in defendant Jovaun Patterson’s case Wednesday. But four people from the District Attorney’s Office — including three higher-ups — went to Means’ courtroom early in the morning to speak to the judge about the case, according to the source, who spoke on condition of anonymity.

They were First Assistant District Attorney Robert Listenbee; Michael Giampietro, a former defense attorney who was hired by Krasner as a senior adviser; Krasner’s spokesperson, Ben Waxman; and the prosecutor who handled the Nov. 15 plea hearing and sentencing, Lori Edelman Orem.

Means wasn’t expecting them, and neither was the gunman’s attorney, S. Philip Steinberg, who was called to the courtroom, according to the source.

At issue was a controversial petition filed Friday by the District Attorney’s Office asking the judge to vacate its negotiated plea deal for Patterson, 29, who was sentenced to 3½ to 10 years in state prison for the May 5 shooting of Mike Poeng with an AK-47, a sentence that several former prosecutors and critics of Krasner consider lenient.

The judge also said that the Feb. 11 hearing would give him the opportunity to tell Poeng that he could object to the Pennsylvania Board of Probation and Parole whenever Patterson is up for parole and that the District Attorney’s Office could do so as well, the source said.

Poeng, 50, was not aware of this brief hearing. He said that a victim-services coordinator from the District Attorney’s Office, Danielle Nispel, called him Wednesday morning to ask if he would be able to go to court on Feb. 11. He has said that the District Attorney’s Office, in offering what he considered to be a light sentence, was "almost like ... promoting a criminal to have an AK-47.”

Waxman did not return calls or an email seeking comment Wednesday. Giampietro also did not return a call. Steinberg could not immediately be reached for comment.

Nothing was noted on Patterson’s court docket regarding Wednesday morning’s hearing or the Feb. 11 hearing as of late afternoon Wednesday.

Steinberg had opposed the district attorney’s petition, noting in a brief that it was filed too late and that it would be “unfair” to Patterson and the “criminal justice system as a whole" to back away from a negotiated deal.

Patterson had pleaded guilty and was sentenced Nov. 15 on charges of aggravated assault, robbery, and possession of an instrument of crime. In exchange, prosecutors dropped charges of attempted murder, violations of the Uniform Firearms Act, and related offenses.

The District Attorney’s Office said in its petition that Orem did not have the plea offer reviewed by her supervisor and also noted that the victim was not notified of the plea deal or the hearing, in violation of the Pennsylvania Crime Victims Act.

The petition did not say if the District Attorney’s Office would seek a lengthier sentence for Patterson if the judge were to grant a new hearing, and Waxman on Tuesday declined to comment when asked if the office was planning to seek a harsher sentence or just wanted a hearing so the victim could be given the opportunity to testify.

Also on Tuesday, U.S. Attorney William M. McSwain, the top federal law enforcement official in Philadelphia, said that his office was considering charging Patterson with federal crimes for the same incident.

Former prosecutors have said that under Krasner’s predecessors, prosecutors would have asked for a double-digit sentence at the minimum for a shooting with an AK-47 that critically injured someone. Poeng cannot walk without assistance as a result of his injuries.

Mike Poeng's wife helps him return to his bed. Poeng has limited mobility in his right leg after being shot and can't walk on his own.
TIM TAI / Staff Photographer
Mike Poeng's wife helps him return to his bed. Poeng has limited mobility in his right leg after being shot and can't walk on his own.

A search of court records showed the following sentences in other Common Pleas Court gun cases that occurred before Krasner, a former criminal defense attorney, took office in January. Defendants are sentenced in part based on the nature of the crime committed and their criminal history:

  • In 2017, Alan Stokes, 26, was sentenced by Judge Mia Roberts Perez to 25 to 50 years in state prison after pleading guilty to attempted murder and firearms offenses for an August 2014 shooting outside a West Philadelphia store that left the victim, then 49, paralyzed from the waist down. The victim had accidentally bumped into Stokes inside the cramped store. 
  • In 2016, Danir Malloy, 26, was sentenced by Judge Susan Schulman to 11 to 22 years in state prison after a jury found him guilty of robbery, possession of an instrument of crime, and related offenses in a 2015 Center City robbery in which Malloy threatened the victim with a fake gun. The victim testified at trial that he believed the silver handgun to be real. After the two men struggled for control of the gun, the victim fell, and Malloy took $15. 
  • In 2014, Demond Thomas, 37, was sentenced to nine to 18 years in state prison by Judge Donna Woelpper after being found guilty by a jury of aggravated assault, robbery, and gun offenses after he shot a man in the leg in North Philadelphia and stole sneakers from him. 
  • In May 2013, Shaheed Springs, 22, was sentenced by Judge Diana Anhalt to 7½ to 17 years in prison on two gun-possession cases, one of which also involved a felony offense of possessing heroin with intent to deliver. No one was shot in either case.