District Attorney Larry Krasner’s office now wants to vacate a controversial plea deal and sentence it had obtained for a career criminal who shot and critically injured a West Philadelphia beer deli owner with an AK-47 rifle, a case that has become a flash point in the year-old administration of the former defense attorney.

The gunman, Jovaun Patterson, 29, was sentenced on Nov. 15 to 3½ to 10 years in state prison after pleading guilty to aggravated assault, while an attempted-murder charge was dropped. The Inquirer and Daily News reported that the victim, Mike Poeng, 50, who was in a coma for weeks after the shooting, was stunned by the plea deal.

Krasner’s office filed a motion Friday asking Common Pleas Court Judge Rayford Means to reconsider the sentence.

In an interview later Friday, Poeng said he was uncertain if his assailant would actually get a harsher sentence. “I’m a little happy that something is being done,” Poeng said, adding that he was still cautious.

Patterson’s attorney, S. Philip Steinberg, could not be reached for comment late Friday.

The Inquirer and Daily News on Wednesday asked Krasner’s spokesperson, Ben Waxman, why the office had offered the initial deal, and why Poeng and his family were not notified of the plea hearing and sentence, in violation of state law. Waxman responded in an email Friday blaming the assistant district attorney working on the case.

“Our office conducted a review of this case after being notified that the victim had not been contacted prior to the defendant accepting a negotiated guilty plea,” Waxman wrote. “Our review found that the assigned ADA made two mistakes. First, she did not contact the victim prior to the plea, which is against DAO policy as well as state law. Second, she did not get authorization from her supervisor to convey the plea offer.”

Waxman said they “were honest mistakes made by an experienced and dedicated prosecutor.” He said Krasner told the prosecutor to file the motion for the judge to reconsider the sentence.

“If the motion is granted, the victim will have an opportunity to speak at a re-sentencing hearing as to how the crime has impacted him. It will also vacate the current sentence for the defendant,” wrote Waxman, who said he would not comment further.

Following the Nov. 15 hearing, the Inquirer and Daily News visited Poeng twice in his sister’s second-floor apartment, where Poeng, his wife, and their three sons now live.

“It’s almost like you’re promoting a criminal to have an AK-47,” Poeng said of the District Attorney’s Office in reaction to what he considered a lenient sentence for Patterson.

Waxman was asked Wednesday to respond to Poeng’s statement, but did not do so in his email Friday.

‘A war weapon’

Poeng now spends most of his time lying on a bed in a bedroom he shares with his wife and sons. Having been shot in the groin, he has limited mobility in his right leg and can’t walk on his own. He needs help just to sit up.

Mike Poeng eats dinner alone in his room one evening in November.
TIM TAI / Staff Photographer
Mike Poeng eats dinner alone in his room one evening in November.

The sentence and the lack of victim notification sparked outrage from former prosecutors. Some critics saw this case as an example that under Krasner, decisions were being made to favor criminal defendants with a lack of concern for victims’ rights.

An AK-47 is “a war weapon," said Lynne M. Abraham, who served as district attorney from May 1991 to January 2010.

Abraham, who had a reputation as a tough prosecutor, called Patterson’s sentence “outrageous,” and "an insult and offensive to the victim and any law-abiding citizen.”

Former prosecutors, many speaking on condition of anonymity, 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 caused serious injury.

Under District Attorney Seth Williams, who succeeded Abraham, the city in 2012 initiated a program called GunStat, aimed at reducing gun violence in certain crime hot spots. The District Attorney’s Office then expanded the program to its six geographic zones. Under GunStat, prosecutors sought state prison sentences for defendants in gun-possession cases, tracked offenders, and shared intelligence with other city agencies. Krasner dismantled the program.

The program was designed to be a proactive and intelligence-based approach to determine violent offenders, said Tanner Rouse, who was a prosecutor in the District Attorney’s Office from 2010 to 2017.

Based on his experience, Rouse said, “it would not shock me if someone had gotten three to 10 [years in prison] for just possessing an AK-47.” He said he was “very surprised” that Patterson received that sentence for shooting someone. “The damage that an AK-47 can do to your body is extraordinary,” he said. “This gun is a killing machine.”

Not notifying Poeng of the plea deal was “a failing” of the District Attorney’s Office, Rouse said. “It was imparted to me in my time in the office [that] we have an obligation to our victims. You have a duty to walk through with them what’s going on in the case.”

An AK-47 rifle is shown in an undated file photo. This is not the exact weapon used by Patterson.
File photo / Philly.com file photo
An AK-47 rifle is shown in an undated file photo. This is not the exact weapon used by Patterson.

‘He literally died in the trauma bay’

Poeng was washing his car outside his KCJ Inc. beer deli at 54th and Spruce Streets about 1:30 p.m. May 5 when Patterson, a regular customer who lived around the corner on the 5400 block of Delancey Street, sauntered up to him on the sidewalk with a loaded AK-47.

“He said, ‘This is a robbery. Go inside,’” Poeng recalled in an interview. His mind raced to thoughts that Patterson would kill him, and then go inside the store and kill his wife and their sons.

"That's the last thing I remember," he said. "I don't remember fighting with him."

"I don't remember I got shot."

He remembered waking up from a coma what seemed to him to be weeks later at Penn Presbyterian Medical Center.

Mark Hoofnagle, who was working as a trauma surgeon at Penn Presbyterian that May day, said if police hadn’t rushed Poeng to the hospital, “we would have lost him.”

In fact, Poeng’s heart stopped beating, Hoofnagle said. “He literally died in the trauma bay.”

Mike Poeng walks with a walker, shuffling his right leg, in the hallway of his sister's second-floor apartment, followed by one of his sons.
TIM TAI / Staff Photographer
Mike Poeng walks with a walker, shuffling his right leg, in the hallway of his sister's second-floor apartment, followed by one of his sons.

Hoofnagle recalled opening up Poeng’s chest to resuscitate him. In the first 12 hours, it was not certain that Poeng was going to survive, said Hoofnagle, now a trauma surgeon in St. Louis.

Hoofnagle said the fast-traveling 7.62 millimeter AK-47 round struck the head of Poeng’s femur, cut his femoral artery and vein in half, and caused enormous tissue destruction before exiting his right buttock, leaving a “fist-size” hole.

Poeng, who is of Chinese descent and who came to the United States in 1981 as a refugee from Cambodia’s killing fields, spent about a month and a half hospitalized, then a month at Magee Rehab before being discharged in early August.

These days, Poeng worries about whether he can ever walk again on his own. Samir Mehta, chief of orthopedic trauma at Penn Medicine, said Poeng’s hip joint was damaged by the shooting.

Poeng also worries about his financial future. His wife, who as a housewife took care of three kids, now has to care for him too, he said.

14th arrest

The shooting of Poeng was Patterson’s 14th arrest in Philadelphia. As a juvenile, he was arrested four times from ages 15 to 17 on charges of vandalism, assault, and drug possession. Records provided by a law-enforcement source did not indicate the outcomes of his juvenile cases.

Jovaun Patterson, AK-47 gunman, who shot and critically wounded West Philly beer deli owner Mike Poeng outside his store on May 5, 2018.
Jovaun Patterson, AK-47 gunman, who shot and critically wounded West Philly beer deli owner Mike Poeng outside his store on May 5, 2018.

Of his 10 arrests as an adult, four resulted in convictions, including his plea to felony aggravated assault and robbery charges in Poeng's shooting.

Before that, his convictions were on misdemeanor charges. He had faced felony charges including attempted murder, gun charges, and robbery. In some cases, the more serious charges were dismissed after key witnesses failed to appear in court to testify.

His convictions included two cases of crack-cocaine possession, institutional vandalism for headbutting and shattering the back windshield of a police car, and criminal trespass and possession of an instrument of crime for unlawfully entering a home and damaging a window with a shovel.

On the night before he confronted Poeng with the AK-47, Patterson went to a neighbor’s home with the rifle and asked him how to use it, according to a West Philadelphia resident who spoke to police after the shooting.

The resident told police that Patterson allegedly said that "he was tired of Mike's mouth and something had to be done about him."

Poeng said he never had any problems with Patterson.

Patterson surrendered to police July 1 and was charged with attempted murder, aggravated assault, robbery, and various gun offenses in Poeng’s shooting after an arrest warrant was issued for him the previous day.

On Nov. 15, during a two-minute hearing, Assistant District Attorney Lori Edelman Orem told Means that the District Attorney’s Office and the defense agreed on a negotiated deal for Patterson to plead guilty to aggravated assault, robbery, and possession of an instrument of crime in exchange for a sentence of 3½ to 10 years in state prison. The District Attorney’s Office dropped remaining charges, including attempted murder and violations of the Uniform Firearms Act.

In reading a brief summary of the facts of the case, Orem said Patterson had a “large firearm” without specifying that it was an AK-47. She said the victim was still recovering.

The judge accepted the negotiated sentence during a morning session when he had numerous defendants before him — each with plea offers on a variety of cases.

Neither Poeng nor any of his relatives was in the courtroom. They had not been told by the District Attorney’s Office of the plea hearing and sentencing.

Waxman declined Friday to make Orem available for an interview.

Prosecutors are required, under the Pennsylvania Crime Victims Act, a state law, to notify victims in personal-injury crimes of a plea deal and to give the victim an opportunity to comment. But the law is toothless.

The District Attorney’s Office under Krasner has been criticized for not providing victims' family members of timely notice of plea deals in high-profile homicide cases and for not seeking their input.

Jennifer Storm, who heads the state’s Office of Victim Advocate, said the District Attorney’s Office violated Poeng’s right to be informed of the plea deal, to be present at the sentencing, and to be heard.

Storm has been fighting to get a victim-protection bill called Marsy’s Law passed in Pennsylvania. In Poeng’s case in a post-Marsy’s Law world, Storm said, “I could motion the court for reconsideration of that guilty plea.” The judge would be required to hold another hearing, which could result in the same outcome, but at least the victim would have a voice, she said.

Caught on video

Waxman had said in a Nov. 15 email that Patterson’s sentence was “wholly appropriate” and that the "guilty plea to aggravated assault was also wholly appropriate as the video evidence depicted a struggle involving the gun prior to its discharge.”

Abraham, the former DA, did not agree.

“The victim has to stand there and allow himself to be slaughtered like a sheep? That statement is so absurd, it’s beyond the pale,” Abraham said.

The video shows Patterson walking up the sidewalk with an AK-47 and confronting Poeng, who is washing his car. Patterson punches Poeng in the face, prompting Poeng to spray his water hose at Patterson and then punches him back. At one point, Poeng appears to put his hand on the rifle while trying to fight off Patterson, but never gains control of it. Patterson then shoots Poeng with the AK-47.

Patterson then fled back toward Delancey without getting any money, police have said.

The AK-47 was never recovered and Patterson did not tell police where he got the rifle.