Judge refuses to vacate state sentence in AK-47 gunman’s case, but raises concerns about double jeopardy

The Philadelphia judge who approved a plea deal for a man who shot a West Philadelphia beer deli owner with an AK-47 rifle, nearly killing him, denied a defense request Monday to vacate the plea deal and sentence, but raised concerns about double jeopardy, given that federal prosecutors charged the gunman on the same offense two months ago.

“You got double jeopardy,” Common Pleas Court Judge Rayford Means said in court. He wondered how the federal government could charge the defendant in the same incident he was already sentenced for in the state court system.

But Means did not grant a request by defense attorney S. Philip Steinberg to vacate Jovaun Patterson’s sentence of 3½ to 10 years in state prison. He told Steinberg that he could appeal to Superior Court.

Patterson’s case prompted criticism after The Inquirer reported last Nov. 15 that the District Attorney’s Office had offered Patterson that sentence under a plea deal — considered lenient by many in the law enforcement community — and had not notified victim Mike Poeng of the deal or hearing, in violation of the state Crime Victims Act.

Citing concern for the public’s safety, U.S. Attorney William McSwain on Feb. 28 announced that federal prosecutors were charging Patterson with attempted robbery under the Hobbs Act and with using, carrying, and discharging a firearm during a crime of violence for the same incident.

Federal prosecutors were able to charge Patterson for the same crime under the “dual-sovereignty doctrine,” which deems the federal and state governments as separate “sovereigns.” Under the doctrine, each government may prosecute a person for the same act without violating the Constitution’s protection against double jeopardy if the person’s conduct violated both jurisdictions’ laws.

Means, however, thought otherwise.

He also warned of a “slippery slope,” saying defendants who come into his courtroom, plead guilty, and are sentenced should be able to have closure and rely on a sentence being final.

McSwain, in a statement after Monday’s hearing, said, “Under current law, there are no double jeopardy concerns. More fundamentally, however, if the district attorney and his office had done their job in the first place, we would not have had to step in and clean up their mess.”

Means had initially scheduled Monday’s hearing for the victim to give an impact statement, since he wasn’t afforded the opportunity to do so Nov. 15. But he canceled the hearing after learning that federal prosecutors had indicted Patterson.

Assistant District Attorney Lori Edelman Orem was in court Monday to try to read an impact statement by Poeng, who was shot and critically wounded by Patterson during an attempted robbery last May.

But Means told Orem, “I have no more jurisdiction of this case anymore."

Means also contended that if the victim gave a statement, it could open him up to being questioned by the defense attorney on any inconsistencies if he testified differently when the case goes to trial in federal court.

After first offering Patterson the plea deal to charges of aggravated assault, robbery, and possession of an instrument of crime, District Attorney Larry Krasner’s office on Dec. 7 filed a motion asking Means to vacate the deal after criticism emerged.

Steinberg, who initially opposed the motion to vacate the deal, changed course in February when he learned that the federal government was to indict Patterson and filed a Feb. 26 request asking Means to vacate the state sentence. If convicted under the federal firearm statute, Patterson would face a mandatory minimum sentence of 10 years consecutive to any other sentence he is to serve.

Steinberg told Means on Monday that there is a similar case on appeal before the U.S. Supreme Court. In that case, an Alabama man, Terance Gamble, who had pleaded guilty in state and federal court in a gun case, is asking the high court to overrule the “separate sovereigns” exception. The high court heard arguments in December.