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what is the difference in penalties for attempted manufacture…

what is the difference in...
what is the difference in penalties for attempted manufacture of methamphetamine (one-pot method) with no distribution and no quantity found, and running a meth lab for distribution with meth found?
My brother read about the method of making meth, and researched it online, and tried to make it. His house was searched on the basis of a false statement (later recanted) and since he hadn't thrown away the stuff he used for his experiment, they found it and arrested him on dozens of separate felonies for the individual components (whatever they are) of his attempt. He waited 9 months for a court appointed attorney who had him sign a plea without explaining the consequences to him. My brother is mentally challenged, and has, shall we say, a steep learning curve.
He was certain that if he admitted that he tried to make meth, the judge would give him a suspended sentence, based on his understanding of what the lawyer said (after the judge made him explain it to my brother) while in court and getting ready to plead no contest. Also, there are dozens of cases in our town much worse, and heinous in the extreme, but the perpetrators receive suspended sentences.
My brother is now sentenced to 6 years of prison, and was taken away immediately. He is not a bad person, and he is not a hardened criminal. On the contrary, he is now completely sober (1 year yesterday) of his own choosing, has strong support system in the community, and has a job waiting for him. Why would the judge sentence him differently from violent offenders or manufacturers who distribute and transport? Do we have any recourse to the sentencing, or can we take back the plea based on my brothers lack of understanding and lack of legal representation/advice?
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Answered in 12 minutes by:
11/7/2012
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 32,264
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
Verified
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

The penalties for an attempt to commit a crime are the same as the penalties for actually committing it. The legislature does not want a person to be able to avoid criminal liability simply because he failed in achieving his intended goal (not because he changed his mind - that would be different). Kansas Stat., Section 21-36a03, which discusses unlawful manufacturing, specifically states that "Violation or attempted violation of subsection (a) is a drug severity level 1 felony". A person who is convicted of manufacture or attempt to manufacture cannot have his sentence suspended, or do community service or probation instead of jail time. There is no difference in penalty. I'm sorry.

I apologize that this was probably not the Answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Good luck.

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Customer reply replied 5 years ago

I think I did not ask my question clearly enough. Let me try to clarify:


 


The facts:


 


The warrant to search was based on a false accusation of assault.


 


The accusation was recanted so is not a part of this.


 


Nevertheless, upon searching his house, the police found precursors and residue of "a white substance"


 


They did not accuse him of distributing, only of manufacturing.


 


The court appointed attorney did not see my brother until 6 months after his arrest, when they were at a status hearing, and did not speak to him then.


 


The attorney convinced my brother after the second status hearing, 8 months after his arrest, that he would spend 250 months in prison if he did not plead no contest and accept a plea agreement.


 


My brother did not understand anything sufficiently to make an informed decision. He does not read well, and has very little reading comprehension. He said ok, based on what he THOUGHT the lawyer meant.


 


The Kansas sentencing guidelines give proposed sentences, based on offense, number of offenses, but do not explain the levels 1-8+ of each grid box, so we assumed based on other cases we read about in our local paper, that he would receive a suspended sentence and probation.


 


MY QUESTION:


 


Since the judge sentenced the max and prison, is there any going back now?


Can we take back the plea?


Can we challenge the sentence based on preferential treatment, legal representation failure, or on any other basis?


Can we fight the warrant?


 


Basically, my question is: Do we have any further recourse, or is it a done deal?

Customer reply replied 5 years ago

Please acknowledge receipt of my clarification. Thanks!

Customer reply replied 5 years ago
Relist: Incomplete answer.
I think I did not ask my question clearly enough. Let me try to clarify:



The facts:



The warrant to search was based on a false accusation of assault.



The accusation was recanted so is not a part of this.



Nevertheless, upon searching his house, the police found precursors and residue of "a white substance"



They did not accuse him of distributing, only of manufacturing.



The court appointed attorney did not see my brother until 6 months after his arrest, when they were at a status hearing, and did not speak to him then.



The attorney convinced my brother after the second status hearing, 8 months after his arrest, that he would spend 250 months in prison if he did not plead no contest and accept a plea agreement.



My brother did not understand anything sufficiently to make an informed decision. He does not read well, and has very little reading comprehension. He said ok, based on what he THOUGHT the lawyer meant.



The Kansas sentencing guidelines give proposed sentences, based on offense, number of offenses, but do not explain the levels 1-8+ of each grid box, so we assumed based on other cases we read about in our local paper, that he would receive a suspended sentence and probation.



MY QUESTION:



Since the judge sentenced the max and prison, is there any going back now?

Can we take back the plea?

Can we challenge the sentence based on preferential treatment, legal representation failure, or on any other basis?

Can we fight the warrant?



Basically, my question is: Do we have any further recourse, or is it a done deal?
Unfortunately, a person cannot withdraw a guilty plea because he receives a harsher penalty than anticipated. The basis for withdrawing a plea is that his will was overcome and he was under so much duress that the plea was involuntary. This is a very difficult standard to meet. Most requests to withdraw a guilty plea are denied. If he does have mental disabilities that could help. He could try to argue that his attorney did not provide effective assistance of counsel, but it's a tough argument.

The only way to fight the warrant is to have the guilty plea withdrawn. At this point, the case is over, and he admitted guilt. So, he has to reopen the case by withdrawing his plea. Otherwise, the case is done, and the warrant is irrelevant. That's really the only avenue available to him at this point.
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 32,264
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
Verified
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