By: WISCONSIN LAW JOURNAL STAFF//November 10, 2011//
United States Court of Appeals
Criminal
Habeas Corpus — ineffective assistance
Even if a state defendant’s attorney erroneously stated the maximum penalty, the defendant was not prejudiced where the trial judge correctly informed him of the maximum sentence.
“We assume, as the parties have done, that Payne’s lawyer told him that the maximum sentence could not exceed 20 years, and not just that he would try to persuade the judge that this was the limit. Attorneys often are more confident of their position than the law warrants; perhaps Payne’s lawyer failed to alert his client to the risk that his argument would be rejected. (It was a weak argument; counsel apparently got the rules for lesser included offenses backward and assumed that the greater offense merges into the lesser.) But though Payne received bad advice from his lawyer, he received the correct information from the judge. He could have backed out when he heard the unwelcome news—the lawyers, jury, and witnesses were ready to proceed with trial—but he didn’t.”
Affirmed.
Appeal from the United States District Court for the Southern District of Indiana, Young, J., Easterbrook, J.