Neatherlin v. Brown

For a petitioner to succeed on this appeal, they must prove that trial counsel failed to exercise reasonable professional skill and it was a prejudicial error. 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.” Maxfield v. Cain, 322 Or App 405, 409, 520 P3d 890 (2022).

Petitioner appeals a judgment denying post-conviction relief on the grounds of inadequate and ineffective assistance of counsel. Petitioner's sole argument is that her counsel should have obtained a psychological evaluation to use as mitigation evidence for sentencing. For a petitioner to succeed on this appeal, they must prove that trial counsel failed to exercise reasonable professional skill and that it was a prejudicial error. 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.” Maxfield v. Cain, 322 Or App 405, 409, 520 P3d 890 (2022). The Court found that the evidence from the superintendent reflected that trial counsel thought it would be ineffective to use a psychological evaluation, and rather, Petitioner’s case would benefit from other evidence, making her appear remorseful. The Court reasoned that even without the evaluation, petitioner’s counsel achieved a lower sentence than the 35-year sentence the state was seeking; consequently, the psychological evaluation would not have been prejudicial in lowering her sentence. The Court also reasoned that the evaluation does not discuss remorse, the factor that Petitioner believes was prejudicial. Therefore, the Court affirms the post-conviction court’s denial of relief. AFFIRMED.