Panning’s conviction upheld on appeal

DAVE MOSIER/independent editor

A man convicted of sexual battery and sentenced to 60 months in prison learned recently that having a “change of heart” is not a valid reason to withdraw a guilty plea.

Bobby L. Panning, who has been serving a prison term since 2004 on a rape conviction, appealed a prison sentence handed down in Van Wert County Common Pleas Court on August 13, 2014, by then-Judge Charles D. Steele. The judge also classified Panning as a sexual predator and ordered that the sentence run consecutively to the prison term he has been serving  the past 11 years.

The case stems from Panning’s alleged rape of his 8-year-old son in 2002. The son, now approximately 21, provided information to the Van Wert County Sheriff’s Office that led to Panning’s indictment on charges of rape, a first-degree felony, and sexual battery, a felony of the second degree, on May 3, 2013. The sexual battery offense was later reduced to a third-degree felony to reflect the law in effect at the time of the alleged offense in 2002.

Panning, who has maintained his innocence of the charges throughout the case, later decided to plead guilty to the sexual battery charge, noting: “I accepted this plea for the fact that I know that if I didn’t, that if I went to trial, my own attorney informed me that, you know, there’s a possibility that I could be imprisoned for the rest of my life, you know, fighting on appeal.”

Judge Steele sentenced Panning to 60 months in prison (five years), and Panning appealed, noting through attorney Dillon Staas IV that his previous counsel, Scott Gordon, was ineffective for failing to bring two errors to the trial court’s attention, and alleging that the court had erred by classifying him as a Tier III sex offender and by sentencing him to consecutive prison terms.

The Ohio Third District Court of Appeals reversed Panning’s conviction at that time, noting that the sex offender tier system was not in effect at the time of the alleged offense, while also finding an error in the court’s lack of findings in connection with sentencing Panning to consecutive sentences.

The case returned to Common Pleas Court on August 13 of last year, with Gordon again representing Panning, and Panning again electing to plead guilty to the sexual battery charge.

The defendant also read a statement in which he again claimed he was not guilty and that he was “being set up.”

The statement also noted:

“The only reason I took this plea to begin with was for the simple fact that I was threatened, saying that if I did not that I would end up going to trial, where I could end up getting convicted anyways, and spend the rest of my life in prison.”

The judge again sentenced Panning to 60 months in prison and found that he was also a “sexual predator” as defined by the law in effect at the time of the alleged offense.

Panning’s most recent appeal states that he was denied, under the Sixth and 14th amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution, his right to effective legal counsel.

The appellate court, in a decision written by Judge John Willamowski, upheld Panning’s conviction and rejected his claim that he was denied effective legal counsel, noting that he “failed to establish any ineffective assistance on the part of his counsel.”

The decision also noted that, at no time did Panning move through his attorney to withdraw his guilty plea.

“We further note that Panning does not allege that there existed any grounds for plea withdrawal other than a mere change of heart, which is insufficient,” Judge Willamowski added.