354 March 5, 2025 No. 176
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JANUARY IRENE NEATHERLIN,
Petitioner-Appellant,
v.
Nichole BROWN,
Superintendent,
Coffee Creek Correctional Institution,
Defendant-Respondent.
Washington County Circuit Court
20CV26506; A180759
Patricia A. Sullivan, Senior Judge.
Argued and submitted December 4, 2024.
Margaret Huntington argued the cause for appellant.
Also on the opening brief was O’Connor Weber LLC. Also on
the reply brief was Equal Justice Law.
Ryan Kahn, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Mooney, Senior Judge.
AOYAGI, P. J.
Affirmed.
Cite as 338 Or App 354 (2025) 355
AOYAGI, P. J.
Petitioner appeals a judgment denying post-conviction relief. In her sole assignment of error, she argues
that her counsel provided inadequate and ineffective assistance, specifically by failing to obtain a psychological evaluation to use as mitigation evidence at sentencing, and that
the post-conviction court erred in concluding otherwise.
Accepting the court’s findings of historical fact if supported
by the record, and reviewing for legal error, Green v. Franke,
357 Or 301, 312,
350 P3d 188 (2015), we affirm.
Under Article I, section 11, of the Oregon
Constitution, a petitioner claiming inadequate assistance
of counsel must prove by a preponderance of the evidence
(1) that trial counsel failed to exercise reasonable professional skill and judgment, and (2) that petitioner suffered
prejudice as a result. Trujillo v. Maass, 312 Or 431, 435,
822 P2d 703 (1991). Similarly, under the Sixth Amendment,
the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” and that it
caused petitioner prejudice. Strickland v. Washington,
466
US 668, 687-88, 691,
104 S Ct 2052,
80 L Ed 2d 647 (1984).
The state and federal standards are “functionally equivalent.” Montez v. Czerniak,
355 Or 1, 6-7,
322 P3d 487, adh’d to
as modified on recons,
355 Or 598,
330 P3d 595 (2014).
In 2017, petitioner was charged with 122 counts of
first-degree criminal mistreatment and reckless endangerment in connection with her operation of a home daycare
from 2013 to 2017. Petitioner initially had a license, but
it was suspended in 2014 after a child exhibited signs of
a severe head injury. Petitioner kept operating the daycare
without a license. She used a false name, displayed a fake
license in that name in her home, and falsely claimed to be a
registered nurse. She regularly left the children unattended
for hours at a time, while she went to the gym or to the tanning salon, giving them melatonin before she left. There was
also evidence that she was physically and verbally abusive.
On the day of her arrest, the police found seven unattended
infants and young children in petitioner’s home, including a
six-month-old baby lying on a foam couch covered in his own
vomit and a child in a closet in a pack-and-play crib with a
356 Neatherlin v. Brown
mattress over the top. The children were groggy and unresponsive, and some had elevated melatonin levels.
Petitioner ultimately pleaded guilty to 11 counts of
first-degree criminal mistreatment and one count of first-degree assault. The settlement agreement provided for open
sentencing, except that petitioner stipulated to a 30-month
sentence on the assault charge. At sentencing, the state argued
for all consecutive sentences, with a resulting 35-year prison
sentence, emphasizing the egregious nature of petitioner’s
crimes and her prior criminal history. Numerous parents and
grandparents of the child victims testified to the substantial
effect of petitioner’s crimes on the children and their families
and urged imposition of the maximum sentence. Petitioner
argued for mostly concurrent sentences, with a resulting
50-month prison sentence, emphasizing her remorse and her
willingness to take responsibility by pleading guilty.
The trial court sentenced petitioner to 256 months
in prison, explaining at length how it reached its decision.
It emphasized the massive impact of petitioner’s conduct on
the children and their families and the “sheer serendipity”
that none of the children had died; stated that petitioner
had taken “a step” towards taking responsibility but had
“a very long way to go”; “wholly reject[ed]” petitioner’s innocent explanation for the 2014 head injury; noted petitioner’s repeated pattern of deception and putting children at
risk; described petitioner’s prior criminal history as showing “a pattern of deception, a pattern of lies,” and “a complete inability” so far to learn from her criminal decisions;
and acknowledged “something broken and something missing” in petitioner that the court hoped could someday be
made whole. The court stated that the sentence reflected
its balancing of many factors, including the seriousness of
the offenses, the number of victims, its belief in petitioner’s
rehabilitative potential (based on general experience, not
anything petitioner had said or done), petitioner’s age, and
petitioner’s motherhood.
We affirmed petitioner’s sentence on direct appeal.
State v. Neatherlin, 302 Or App 381,
457 P3d 378, rev den,
366 Or 552 (2020). Petitioner then sought post-conviction
relief, claiming, as relevant here, that her counsel provided
Cite as
338 Or App 354 (2025) 357
inadequate and ineffective assistance by “fail[ing] to obtain,
develop, and present mitigating information—including a
psychological evaluation and psychological testimony—at
sentencing.” She put into evidence a psychological evaluation that she had since obtained, which we describe in some
detail later. The superintendent put into evidence a declaration from petitioner’s trial counsel, in which counsel stated,
among other things, that she had considered it unlikely that
a psychological evaluation would be useful in mitigation,
that petitioner did not seem remorseful for her crimes, and
that there was “no evaluation in the world that was going to
justify and mitigate what she had done.” Counsel’s strategy
was instead to present petitioner as remorseful, which she
felt was ultimately successful.
The post-conviction court denied post-conviction
relief, deciding against petitioner on both the performance
and prejudice prongs of her claim:
“In Petitioner’s case, the evaluation does not contain
compelling information that would mitigate her actions.
The harm in Petitioner’s case was egregious, involving
multiple victims who were babies and toddlers. The sentencing involved a lengthy presentation of Petitioner’s history as a child-care provider, a detailed factual background
of the crimes she committed and heartrending statements
from the victim’s families documenting the extensive and
terrible impact of Petitioner’s crimes. In Petitioner’s case,
the Court did not impose the maximum sentence but rather
imposed consecutive sentences for each of the separate victim[s] for a term to reach a sentence the Court felt appropriate under the circumstances. There is nothing in the
mental health evaluation that would indicate the sentence
is inappropriate or that the Court would do anything differently particularly in light of the sentencing record.”
We need not address the performance prong because,
even assuming arguendo that counsel’s performance was
deficient under the particular circumstances, we affirm on
the prejudice prong.
To prove prejudice in this context, petitioner had to
show “more than a mere possibility, but less than a probability that, had trial counsel properly investigated potential
mitigating evidence, the sentence would have been different.”
358 Neatherlin v. Brown
Maxfield v. Cain, 322 Or App 405, 409,
520 P3d 890 (2022)
(internal quotation marks omitted). Given the sentencing
court’s discretion in imposing consecutive sentences, to
determine whether such a showing was made, we, like the
post-conviction court before us, “balance the mitigating evidence, including the new evidence petitioner contends that
counsel should have investigated, against the aggravating
evidence, and evaluate its impact on the sentencing court’s
discretion.”
Id. at 414.
In Maxfield, for example, we concluded that the
petitioner was prejudiced by his counsel’s deficient investigation and development of mitigation evidence for sentencing, where a post-conviction psychological evaluation
showed that the petitioner had in-utero drug exposure, serious drug use beginning in elementary school, and a very difficult childhood, which resulted in “neurological difficulties”
and made it harder for him to regulate his behavior. Id. at
414-15. Competent counsel could have used that information
to argue diminished mental capacity, a recognized mitigating factor under OAR 213-008-0002(1)(a)(C); to argue that
the petitioner was less culpable than someone better able to
regulate their behavior; and to contextualize his problems
in the juvenile system, an aggravating fact that the state
emphasized at sentencing.
Id. at 415-16; see also
id. at 416
(“Th[e] unpresented mitigation information, combined with
petitioner’s youth and relatively minimal criminal history
up until his month-long spree of robberies, when weighed
against the aggravating circumstances in this case—petitioner’s five armed robberies where nobody was ultimately
physically injured and petitioner’s poor record in the juvenile
system—creates more than a mere possibility that counsel’s
deficient performance affected the outcome.”).
Here, the sentencing court made a discretionary
decision to impose a mix of consecutive and partially consecutive sentences, so the ultimate question is whether there is
“more than a mere possibility that an objective, reasonable
factfinder would have chosen to exercise its discretion” to
impose a shorter sentence had it been provided with a psychological report like that in the post-conviction record. Id.
at 413 (internal quotation marks omitted).
Cite as
338 Or App 354 (2025) 359
The only mitigating evidence presented at sentencing was petitioner’s expressed remorse and willingness to
take responsibility by pleading guilty. The post-conviction
psychological evaluation contains the following additional
information that petitioner views as mitigating. Petitioner
suffered abuse, neglect, and poverty during her childhood,
including abandonment by her mother at age 10. Petitioner
began abusing drugs at age 13, was sober for two years after
receiving treatment in prison around 2011, and relapsed in
2013 when her brother died. Her substance use was increasing until her 2017 arrest. Based on testing, petitioner has
mostly low-average cognitive skills. The evaluator diagnosed
her with attention deficit hyperactivity disorder, borderline
personality disorder, moderate chronic post-traumatic stress
disorder, unspecified bipolar disorder, and polysubstance
use disorder in full remission in a restricted environment.
Regarding the period from 2013 to 2017 in particular, when the crimes at issue occurred, the evaluator opined:
“[I]n 2013, when her brother was killed, she was struggling
with employment as a felon, and she experienced financial
difficulties[;] she fell back into her addictions and eventually could not keep her life together. Because of her previous conviction, as a felon, she had fewer options than other
people for work to support her son and niece whom she was
raising. Even though she experienced little positive parenting herself, she decided to become a caregiver for other
children to support her family. As her anxiety and bipolar
symptoms increased, she obsessively used frequent visits
to the gym and tanning salon to help with emotional coping in addition to self-medicating with alcohol, marijuana,
and drugs. Her obsessive-compulsive tendencies compelled
her to follow her self-care schedule even though there was
no coverage for her young charges. Due to her own trauma
history and trust issues, she preferred to leave the children
sleeping unattended rather than risk the abuse she experienced in the hands of other adults. She used Melatonin
with the children because she used it herself and with her
own children and considered it a safe medication. Although
these were unconventional and illegal choices, they made
sense to [her] at the time.”
We next consider aggravating evidence. Aggravating
evidence considered at sentencing included the egregious
360 Neatherlin v. Brown
nature of petitioner’s conduct, the substantial effect of her
crimes on the young child victims and their families, and
prior criminal history. The post-conviction psychological
evaluation adds that petitioner is “distractible, impulsive,
forgetful, has weak social skills and vocabulary, and does
not always see how her actions will affect her life and those
around her”; that she is unlikely to be able to stabilize
her mental health enough to maintain long-term full-time
employment; that the stresses of daily life are too much for
her intellectual and emotional coping skills; and that she
“will require many years of significant mental health and
community support to build a healthy lifestyle out in the
community that is stable.”
Petitioner argues that competent counsel could
have used the psychological evaluation to make her expressions of remorse at sentencing more credible, to argue that
she is less culpable because it is harder for her to regulate
her behavior, and to argue that she is personally capable
of being rehabilitated. We are unpersuaded. The evaluation
is entirely silent on the issue of remorse—either the capacity for it or the fact of it. While petitioner’s obsessive-compulsiveness could help explain some of her behavior, it is
unlikely that a sentencing court would view it as reducing
her culpability for years of criminal conduct that put many
children at serious risk on a daily basis. As for petitioner’s
personal capacity for rehabilitation, nothing in the evaluation suggests any personal rehabilitative capacity greater
than what the sentencing court already assumed. Petitioner
points to her two years of sobriety, but those two years of
sobriety were followed by four years of increasing substance
use. Moreover, the evaluator did not link those two years of
sobriety to any rehabilitative capacity.
In the end, even assuming that competent counsel would have obtained a psychological evaluation before
sentencing in these circumstances, we agree with the post-conviction court that petitioner did not establish prejudice
from not having one. Petitioner’s sentence—which is nearly
14 years shorter than the state requested—already reflects
judicial consideration of petitioner’s expressed remorse,
an assumption that petitioner has some capacity for
Cite as 338 Or App 354 (2025) 361
rehabilitation, and recognition that there was “something
broken and something missing” in petitioner’s psyche. On
this record, there is, at best, nothing more than a “mere possibility” that, with the additional information in a psychological evaluation, an objective, reasonable factfinder would
impose a lesser total sentence than petitioner received.
Maxfield,
322 Or App at 409; see also, e.g., Strickland,
466
US at 700 (“Given the overwhelming aggravating factors,
there is no reasonable probability that the omitted evidence
would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and,
hence, the sentence imposed.”). The post-conviction court
did not err in denying relief.
Affirmed.
