Joseph B. Fernanders, III, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Allen Superior Court The Honorable John F. Surbeck,
Jr., Judge Trial Court Cause No. 02D06-1706-F6-749
Attorney for Appellant Donald J. Frew Fort Wayne, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Caryn N. Szyper Deputy Attorney General
Following a jury trial, Joseph B. Fernanders, III
("Fernanders"), was convicted of Battery, as a
Level 6 felony. He now appeals.
Fernanders raises two issues, which we restate as follows:
I. Whether the State presented sufficient evidence to refute
his defense of parental privilege to discipline his child;
II. Whether he received ineffective assistance of counsel due
to counsel's failure to timely disclose certain
and Procedural History
In early 2017, A.F. was six years old. Her first-grade
teacher used a "color chart" system to keep track
of student behavior. Under the system, each student's
name was on a clip. Every day, the student started with the
clip on "green." For good behavior, the student
could move up to "blue" or "purple." If
the student received a warning, the student would move to
"yellow." If the student continued to misbehave,
the student might move to "orange" for a visit to
the office or "red" for a phone call home. At the
end of the day, the teacher would record the student's
color status on a paper that the student took home.
Fernanders is A.F.'s father. Under an early-2017
arrangement, Fernanders and his ex-wife, Cassandra Ort
("Ort"), shared physical custody of A.F. and her
older sister, R.F. On February 8, 2017, the girls stayed with
Fernanders after school. Fernanders found out that A.F. was
marked "yellow" that day for talking out of turn.
A.F. received the warning for shouting an answer before the
teacher had called on her. This was A.F.'s third
"yellow," and she had received previous warnings
for similar behavior. Fernanders told A.F. to go upstairs,
which she did. A.F. then prepared to be punished, pulling her
pants and underwear down, and leaning over a bed. Fernanders
spanked A.F. on her buttocks multiple times with a belt.
Afterward, he told ...