The defense attorney for a man who shot and critically wounded a West Philadelphia beer deli owner with an AK-47 rifle is arguing that District Attorney Larry Krasner’s effort to vacate a plea deal and sentence that his office negotiated is meritless.

In a filing made public Tuesday, S. Philip Steinberg asks Common Pleas Court Judge Rayford Means to not grant a petition filed Friday by the District Attorney’s Office seeking to vacate Jovaun Patterson’s Nov. 15 plea deal and sentence of 3½ to 10 years in a state prison.

Meanwhile, U.S. Attorney William M. McSwain, the top federal law-enforcement official in Philadelphia, said Tuesday that his office is considering charging Patterson with federal crimes for the same incident. That would require approval from Justice Department officials in Washington, but could result in a stiffer penalty than the term Patterson is serving.

“This was a sweetheart deal for a violent defendant because that’s what the DA’s Office stands for now,” McSwain said. “There was no mistake made here. This deal was given to a violent defendant because that’s what the office wanted to do. Only now, because of intense public criticism, is the office scrambling to undo it.”

Krasner’s spokesperson, Ben Waxman, said in response later Tuesday, “The U.S. attorney has absolutely no knowledge of the facts of how this case was handled, but is confident to share his fact-free opinion. As we have stated, it was an honest mistake by a good lawyer who failed to consult with her supervisor for approval. We are trying to correct it. ... This is political grandstanding.”

Steinberg, the defense attorney, said Tuesday evening that he had not heard from McSwain but would welcome “meaningful dialogue” with him about the case. He said he hoped the U.S. attorney would not commit federal resources toward “retribution for a philosophical disagreement with the Philadelphia District Attorney’s Office.”

In his brief, Steinberg wrote that the district attorney’s motion was not filed within the deadline for post-sentence motions and that the “unprecedented” petition to vacate a negotiated guilty plea and sentence is “unfair” to Patterson and the “criminal justice system as a whole."

Patterson “relied on these negotiations” with the expectation that the agreement would be honored, Steinberg wrote. If Means were to grant the petition, it would "have a crippling ripple effect to both the judicial economy of the courts and a defendant’s faith in the legitimacy of our criminal justice system,” Steinberg wrote.

Waxman said Tuesday that he had not yet seen Steinberg’s brief and could not comment on it.

Jovaun Patterson
Jovaun Patterson

The District Attorney’s Office filed its Dec. 7 petition “nunc pro tunc" (which means “now for then”), meaning it was asking the judge to apply a judgment retroactively to correct an earlier ruling.

It said in its petition that the prosecutor handling the case did not have the plea offer reviewed by her supervisor and that the victim, in violation of the Pennsylvania Crime Victims Act, was not notified of the plea deal or the hearing.

The petition said the district attorney was asking relief from the court “to permit supervisory review and permit greater participation by the victim.” It asked for the guilty plea and sentence to be vacated and a new hearing scheduled.

Waxman on Tuesday declined to say whether the District Attorney’s Office would seek a lengthier sentence for the defendant if the judge were to grant its motion.

The motion relied on a 2003 Superior Court decision, Commonwealth v. Dreves, to argue that the court can grant a request to file a post-sentence motion within 30 days of a sentence if no appeal has been made. Steinberg, in his response, called the reliance on Dreves “novel yet misapplied,” and said the right afforded by Dreves “is exclusively” for the defendant, not the government.

Retired state Supreme Court Chief Justice Ronald D. Castille, who was district attorney from 1986 to 1991, said Tuesday that the District Attorney’s Office is “out of luck.”

He said “there is no legal basis” for the office to ask a judge to reconsider a negotiated plea deal and sentence. The defendant “can’t be tried again, because that would be a violation of double jeopardy,” said Castille.

Victim Mike Poeng spends much of his days now lying in bed in a room he now shares with his wife and three sons.
TIM TAI / Staff Photographer
Victim Mike Poeng spends much of his days now lying in bed in a room he now shares with his wife and three sons.

“They can’t just say [a prosecutor] violated office policy. That has nothing to do with the criminal-justice system or the legality of a sentence,” said Castille.

Castille said he saw the petition as a “public relations response” to criticism of the negotiated sentence.

Charles Gallagher, who served from 1974 to 2009 in the District Attorney’s Office, including as chief of homicide, and then nearly eight years in the Lehigh County District Attorney’s Office before retiring last year, said Tuesday that he didn’t see anything in the petition asking for the sentence itself to be changed. He said he had never heard of the commonwealth’s asking for a reconsideration of a sentence it had negotiated.

The prosecutor on the case should not be blamed, he said. “She should have been given some supervision and some direction. It’s unconscionable that a supervisor wasn’t aware of this position [plea deal] in such a serious case. ... I fault the management and supervision of that office.”

“This plea was a plea agreement,” he said. “You can’t back out of it.”

“The most important person wasn’t there — the victim,” he added.

Gallagher also said of Krasner, “He’s spending more time representing defendants" than protecting the public.

Waxman on Tuesday said he had no reaction to Gallagher’s comments.

Means has yet to rule on the petition.

Under the Nov. 15 deal, Patterson pleaded guilty to aggravated assault, robbery, and possession of an instrument of crime. In exchange, the District Attorney’s Office dropped charges of attempted murder, violations of the Uniform Firearms Act, and related offenses.

Waxman, in an email later that day, said the withdrawal of the attempted-murder charge was “wholly appropriate as the video evidence depicted a struggle involving the gun prior to its discharge” and said the sentence was “wholly appropriate.”

Castille, however, said: “In my DA’s Office, I would go for attempted murder, which is exactly what it was. The guy’s got an AK-47 and is going in to rob somebody.” With an AK-47, there’s “no such thing that’s an accident.”

The shooting occurred about 1:40 p.m. May 5, when Patterson, armed with an AK-47, confronted Mike Poeng outside his beer deli at 54th and Spruce Streets while Poeng was washing his car. Patterson tried to push Poeng into his store in an attempt to rob it while Poeng’s wife and three sons were inside.

Surveillance video showed Patterson punching Poeng in the face, then Poeng spraying his water hose at and punching Patterson. At one point, it appeared Poeng put his hand on the rifle while trying to fight off Patterson, but he never gained control of it. Patterson then shot Poeng in his groin and fled without taking any money. Poeng was almost killed by the shooting and cannot walk on his own.

Common Pleas Judge Rayford Means, left, with an assistant inside the Criminal Justice Center in March 2017.
DAVID MAIALETTI / Staff
Common Pleas Judge Rayford Means, left, with an assistant inside the Criminal Justice Center in March 2017.