Former Neurosurgery professor Tracy McIntosh's lawyer has filed a petition to halt McIntosh's Dec. 21 court-ordered resentencing for a 2002 sexual assault.
The petition for a writ of mandamus, filed Friday with the Pennsylvania Supreme Court, asks the Commonwealth's high court to block resentencing proceedings and require the case's original judge, Rayford Means, to re-assume the case and explain the reasons for his controversial original sentence of 11 1/2 to 23 months of house arrest.
The move comes just a week after McIntosh announced that he would not try to withdraw his no-contest plea and would proceed with resentencing.
In case of a denial of his primary request, defense attorney Joel Trigiani also asked the high court in the petition to force an evidentiary hearing to determine if an alleged plea deal between McIntosh's former lawyers, prosecutors and Means existed.
McIntosh's former and current lawyers say the deal - purportedly made when McIntosh entered his no-contest plea in December 2004 to the sexual assault of his college roommate's 23-year-old niece - stated that McIntosh would receive no prison time in exchange for the plea.
The Philadelphia District Attorney's office has repeatedly denied that such a deal existed.
If the petition is unsuccessful, McIntosh could face prison time. Prosecutors have said they will ask for five to 10 years in state prison at McIntosh's resentencing.
In the petition, Trigiani states that the defense believes the Supreme Court, which affirmed a Superior Court ruling vacating Means' sentence as too lenient in April, made that decision intending to compel Means to state his reasons for the sentence.
The Supreme Court reversed a Superior Court mandate that a new judge take over the case, Trigiani asserts, because "no other judge would be in a position" to state the reasons for Means' sentence.
Means recused himself from the case at a Sept. 7 hearing in which he hinted that a deal had occurred, saying that, "I know in my heart of hearts what the parties bargained for."
In the petition, Trigiani criticizes the courts for denying his motions for a hearing to determine if the deal existed.
"It is also extremely interesting that no court in the Court of Common Pleas of Philadelphia County will provide any forum to ferret out the truth concerning the deal even though it is 'beyond obvious' that a deal existed," he said.
Assistant District Attorney Richard DeSipio denounced the petition as "meritless," adding that the defense is "playing the Supreme Court" because it never raised the issue of the alleged plea during the last several years of sentencing proceedings.
DeSipio said prosecutors plan to file a response to the petition within two weeks. The Supreme Court will then decide whether to hear the case.
DeSipio said he expects the high court to dismiss the case because it has "no legal basis."
Trigiani did not return a phone call yesterday for further comment.
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