Appeals Court reverses man’s conviction

DAVE MOSIER/independent editor

LIMA — A case involving a man who is serving prison time for several sex offenses is being sent back to Van Wert County Common Pleas Court after the Third Ohio Court of Appeals in Lima found that sentencing errors were made in the case.

In a decision released this week, Judge Richard Rogers reversed a prison sentence given to Bobby L. Panning in connection with a sexual battery case that occurred 11 years ago, and also remanded the case to Van Wert County Common Pleas Court for resentencing. Judges John Willamowski and Vernon Preston concurred with the decision.

Panning, 40, who was already serving an 18-year prison term in the Lima Correctional Facility on separate rape convictions handed down in Paulding County, was sentenced to an additional 60 months in prison on October 17, 2013, in Van Wert on a charge of sexual battery. The charge was downgraded from a second-degree felony to a felony of the third degree, while a rape charge was dismissed in exchange for his guilty plea in the case.

Panning, through attorney Dillon Staas IV, appealed the sentence and charged that three procedural errors were made during his sentencing hearing.

The first error involves a charge that Panning was wrongfully classified as a Tier III sex offender. When Panning committed the offense for which he was sentenced 11 years ago, the state was operating under Megan’s Law, which was enacted in 1996 and amended in 2003 and required a hearing to determine a sex offender’s classification.

However, Panning was sentenced in October 2013 under the Adam Walsh Act, which became law on January 1, 2008, and includes a tiered system that automatically classifies sex offenders based on the offense committed.

While the Ohio Supreme Court found that Megan’s Law could be applied retroactively to sex offenders convicted prior to its passage, that was not the case with the Walsh Act, which it stated cannot be applied to prior offenders.

Moreover, Megan’s Law was not repealed with the passage of the Adam Walsh Act, meaning it could still be used to determine classification for sex offenders who committed offenses prior to January 1, 2008.

The appellate court agreed with Panning and remanded the case on that basis for proper classification under Megan’s Law.

The second assignment of error was that the local court failed to cite the proper Ohio Revised Code section, and include required findings related to that ORC section, when sentencing Panning to a prison term consecutive to the term he was already serving.

Under current state sentencing guidelines, prison terms are presumed to be concurrent, that is, served at the same time. However, that presumption can be overturned if a trial court makes specific findings set forth in ORC 2929.14(C)(4)(a, b or c) that consecutive sentences are necessary to either protect the public or punish an offender, and that the sentence to be imposed is not disproportionate to the offense committed.

“This court has found that failure to make these findings at the hearing or in the judgment entry is grounds for reversal,” Judge Rogers said in his decision to reverse the sentence. “Therefore, absent the specific findings under R.C. 2929.1(C), any sentence Panning receives must run concurrent to the sentence he is currently serving.”

The decision noted that a third assignment of error, that Panning received ineffective assistance from his legal counsel, was moot and elected not to address it.

The case will now return to Van Wert County Common Pleas Court for “further proceedings consistent with this opinion.”