Fateful Typo Discovered in Ky Peterson's Sentencing

The trans man's former public defender says he hasn't seen a discrepancy like this in 25 years of practicing law. Meanwhile, an assistant DA admits the sentence was 'not proper.'

Ky Peterson is in prison for a crime that is different than the one he pleaded guilty to, according to court records obtained by The Advocate.

The 23-year-old at the center of The Advocate's investigative report "This Black Trans Man Is in Prison for Killing His Rapist" is currently serving a 20-year sentence for "involuntary manslaughter" at Pulaski State Prison in Hawkinsville, Ga.

But a transcript of Peterson's sentencing colloquy — the court hearing where the defense and prosecution present the plea deal they've agreed upon to a judge for approval — obtained by The Advocate shows that Peterson verbally agreed to plead guilty to "voluntary manslaughter."

That was the recommendation of Sumter County, Ga., Assistant District Attorney Lewis Lamb and was agreed to by the judge and Peterson's public defender, David Grindle, according to the court transcript.

But somewhere between that hearing and the filing of Peterson's final disposition — the document that lists a defendant's charge, plea, and sentence — Peterson's charge was recorded as "involuntary manslaughter." The final disposition was signed November 19, 2012, by both Peterson and the judge overseeing his case, Judge R. Rucker Smith.

So Peterson's plea deal saw him sentenced to the maximum term allowed by state law for the crime to which he pleaded guilty (20 years for voluntary manslaughter) and double the maximum amount of time allowed by law for the charge listed on court and Department of Corrections documents obtained by The Advocate (10 years for involuntary manslaughter).

"I don't recall a discrepancy like this in my 25 years of practicing," Grindle, who is no longer practicing law, told The Advocate Wednesday.

When first notified of the sentencing discrepancy earlier this year in the course of The Advocate's reporting, Grindle said that he recalled Peterson's plea deal as one for "voluntary manslaughter."

"But if what the plea agreement says is involuntary, then I effectively committed ineffective assistance of counsel," Grindle previously told The Advocate. "And if that's the case, I apparently made a major mistake."

In a follow-up conversation after The Advocate obtained the sentencing colloquy transcript, Grindle sounded relieved that he was not the only one in Peterson's case to make a mistake.

"The clerk obviously made a mistake, is all I can say," Grindle sighed. "And mistakes do happen. And state and federal laws [exist] to correct a judgment or a piece of the record that could be employed in Ky's case to bring all of them in line."

An assistant district attorney for Sumter County agreed. While declining to outline specific next steps the DA's office might take, Assistant District Attorney Donald Lamberth told The Advocate that the discrepancy between the sentence discussed during the colloquy and that recorded on the final disposition is "an apparent error that needs to be corrected."

"And if this office is the proper channel to correct that, then we will do that," added Lamberth, noting that he could not speak to specifics of Peterson's case as the DA's office did not have a copy of the sentencing colloquy transcript.

Like Grindle, Lamberth said he was surprised that the error in Peterson's plea had not been noticed until The Advocate began investigating Peterson's case. Officials with the Department of Corrections often review the final disposition when processing new inmates and sometimes "catch a sentencing error," said Lamberth. "And they would notify the court, and then whatever mechanism was needed to correct it was done."

Making that correction would require a separate hearing on a motion to amend the record. Peterson would be entitled to attend that hearing, along with legal counsel if he chooses, said Lamberth.

But Grindle — who previously agreed to cooperate with a habeas corpus hearing should Peterson decide to file an appeal alleging ineffective counsel — said Peterson's best bet at this point would be to lie low until he is eligible for parole.

Grindle characterized the plea deal offered to Peterson as a "sweetheart deal," noting that his client was facing felony murder charges for the shooting death of Samuel Chavez, who investigative documents indicate had raped Peterson immediately before his death. In Georgia, convicted murderers face life in prison or even the death penalty.

So Peterson escaped that punishment by taking the plea deal — if indeed the prosecution had enough evidence to convince a jury that Peterson had planned to kill Chavez "with malice aforethought, either express or implied," which is what Georgia law defines as murder. That law goes on to indicate that "malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart."

Investigative records obtained by The Advocate corroborated Peterson's consistent claims that Chavez was raping him in the moments before Peterson fired the single, fatal shot. Indeed, during Peterson's sentencing colloquy, Assistant District Attorney Lamb told the judge he and the state believed that Peterson "had no intention of having sex with him."

"In any event, the victim, Mr. Chavez, apparently was unhappy with this realization, this turn of events," Lamb continued, according to the court transcript. "And he physically forced himself on [Peterson] and raped [him] — attempted to rape [him]."

"The state believes that voluntary manslaughter is an appropriate plea or an appropriate resolution to the case, in light of the fact that we believe Peterson was, in fact, the victim of a rape, or at least an attempted rape," Lamb told the judge, according to the transcript. "And our recommendation is for 20 years, 15 to be served, and the balance to be served on probation."

Lamb, who is currently the chief assistant district attorney, was not available to answer specific questions about the case posed by The Advocate, and Lamberth declined to comment on the details until he had reviewed the transcript.

Lamberth, however, acknowledged that the sentence listed for "involuntary manslaughter" on Peterson's final disposition was outside the maximum allowed for that crime by Georgia law.

"It's a one to 10 [-year sentence] for involuntary, during the commission of an unlawful act," Lamberth says. "It's a 1-10, so 10 [years] would have been the max — which makes this sentence not proper."

"I have in my mind what needs to be done," said Lamberth. "I'd rather not say right now. ... But my thought process is the easiest thing is for this office to handle it and correct the error."

He did, however, say that it was "possible" for Peterson to be re-sentenced or see his sentence altered as the result of any party's motion to correct the record.

It's unclear where, precisely, the erroneous plea originated. Numerous sources familiar with the sentencing process in Georgia indicated that typically, once a judge accepts a plea deal, all attorneys involved with the process hand-write the charge in their own notes. A felony probation officer present at the hearing prepares the formal sentence package, including the final disposition, ultimately presenting it to the court for a signature and formal filing.

"Once [the signed disposition] is filed, then of course it becomes the official record of the court for that case," Lamberth explained. "That's the normal process."

At some point in this process, the plea formally entered in Peterson's case — and that which has followed Peterson during his incarceration over the past three years — was listed as "involuntary manslaughter," with a sentence of 20 years.

Although he said he hasn't often seen "an error of this type" go unnoticed before, Lamberth did express some apparent grief about the sentence preparation process.

"I have always said that all of these sentences need to be reviewed before they're submitted to the court to sign," Lamberth said. When asked whether current sentencing procedures include a systematic review, Lamberth declined to reply, addressing futher questions to the DA.

"I'm not sure, at this point in time, that we know what the ramifications could be from a sentence reconsideration, or reevaluation," Lamberth said of Peterson's case. "But it does open a lot of interesting conversations."