State v. Panning , 2014 Ohio 1880 ( 2014 )

[Cite as State v. Panning, 2014-Ohio-1880.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-13-07
v.
BOBBY L. PANNING, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. 13-05-059
Judgment Reversed and Cause Remanded
Date of Decision: May 5, 2014
APPEARANCES:
Dillon W. Staas, IV for Appellant
Eva J. Yarger for Appellee
Case No. 15-13-07
ROGERS, J.
{¶1} Defendant-Appellant, Bobby L. Panning, appeals the judgment of the
Court of Common Pleas of Van Wert County, convicting him of sexual battery.
On appeal, Panning argues that the trial court erred by (1) classifying him as a Tier
III Sex Offender; and (2) imposing consecutive sentences. Panning also argues he
was denied effective assistance of counsel. For the reasons that follow, we reverse
the trial court’s judgment.
{¶2} On May 3, 2013, the Van Wert County Grand Jury indicted Panning
with rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and
sexual battery in violation of R.C. 2907.03(A)(5), a felony of the second degree.
The events that led to the indictment were alleged to have occurred on or around
October 9, 2002. At the time of his indictment, Panning was serving an 18 year
prison sentence as a result of separate rape convictions in Paulding County in
2004.
{¶3} At a change of plea hearing held on September 5, 2013, the State
amended the indictment, without objection, to change the offense of sexual battery
from a felony of the second degree to a felony of the third degree, to reflect the
statute in effect at the time the offense was committed.1 The State, over the course
1
Under the current statute, where the victim is under 13 years of age, the offense of sexual battery is a
felony of the second degree. R.C. 2907.03(A)(5). While it is undisputed that the victim was under the age
of 13, at the time of the offense a violation of the statute was a felony of the third degree, regardless of the
age of the victim.
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of the proceeding, made numerous references to the law in effect at the time,
correcting the trial court’s recitation of the statute as well as the amount of a fine
for a third degree felony. See Sept. 5, 2013 Hearing Tr., p. 11, 17-18. Panning’s
petition to enter a guilty plea stated that he would be classified as a sex offender,
but had all language that he would be classified under a tier system crossed out.
(Docket No. 40, p. 3-5). Before the court accepted a guilty plea from Panning to
the sexual battery charge, the following exchange took place:
Trial Court: Do you understand that by pleading guilty to this
offense, you will undergo a sex offender classification, and that
could require you to register with the county sheriff with periodic
verification of your registration information. Do you understand
that?
Panning: Yes, I do.
Sept. 5, 2013 Hearing Tr., p. 15. After a dialogue informing him of his rights,
Panning pled guilty to the second count of the indictment, sexual battery, and the
trial court accepted the plea. The first count of the indictment, rape, was
dismissed by the State, and the trial court ordered a pre-sentence investigation
report.
{¶4} At the sentencing hearing held on October 17, 2013, the pre-sentence
investigation report was accepted by the court, Panning testified, and a letter
written by the victim was read by the Crime Victims Advocate. A letter written by
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Panning and the letter read by the advocate were both accepted by the court. The
trial court then stated:
The Court now being fully informed of the circumstances
surrounding the charge and finding no cause which would preclude
pronouncement of sentence, the Court finds that the offender is not
amenable to Community Control and that prison is consistent with
the purposes and principles set forth in Revised Code section
2929.11
Therefore the sentence of law and the judgment of this Court
that the defendant be sentenced to a basic prison term of Sixty (60)
months which shall be served in the custody of the Department of
Rehabilitation and Corrections, to be served consecutive with the
defendant’s current sentence.
Oct. 17, 2013 Hearing Tr., p. 27. Panning was also sentenced to five years of
post-release control, and the court went on to classify him as a Tier III Sex
Offender under the current sex offender registration law. The court informed
Panning of the registration requirements inherent in the classification and that
failure to follow these requirements could result in criminal prosecution.
{¶5} In its judgment entry, the trial court stated that it:
considered the information presented at the sentencing hearing, the
record, the factors pertaining to the seriousness of the offense, the
likelihood of recidivism, the factors contained in R.C. 2929.12 and
2929.13(B), and now being fully informed of the circumstances
surrounding the charge, finds no cause which would preclude
pronouncement of sentence. The Court finds that the offender is not
amendable to community control and that prison is consistent with
the purposes and principles of sentencing set forth in R.C. 2929.11.
(Docket No. 54, p. 2).
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Case No. 15-13-07
{¶6} Panning filed this timely appeal, presenting the following assignments
of error for our review.
Assignment of Error No. I
THE TRIAL COURT’S SEX OFFENDER CLASSIFICATION
OF APPELLANT VIOLATES PROHIBITIONS AGAINST
RETROACTIVE LAWS CONTAINED IN BOTH THE
UNITED STATES CONSTITUTION AND THE OHIO
CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT IMPROPERLY IMPOSED
CONSECUTIVE SENTENCES UPON APPELLANT
WITHOUT MAKING THE REQUIRED STATUTORY
FINDINGS PURSUANT TO OHIO REVISED CODE
SECTION 2929.14(C)(4).
Assignment of Error No. III
APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AS
GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION,
AND HE WAS PREJUDICED AS A RESULT.
Assignment of Error No. I
{¶7} In his first assignment of error, Panning argues that he was
impermissibly classified as a Tier III Sex Offender. We agree.
{¶8} Ohio’s classification system for sex offenders at the time Panning
committed his offense, Megan’s Law, was enacted in 1996 and amended in 2003.
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 7. The Ohio Supreme
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Court found that Megan’s Law, which included reporting and registration
requirements for the offender, could be retroactively applied to offenses that
occurred before both its original effective date and that of its amendments. See
State v Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, ¶ 40; State v. Cook, 83 Ohio
St.3d 404 (1998), paragraph one of the syllabus.
{¶9} Ohio’s current classification system, the Adam Walsh Act, was
enacted in 2007 with an effective date of January 1, 2008. Williams at ¶ 7-8. The
Adam Walsh Act replaced the system under Megan’s Law, which required a
hearing to determine an offender’s classification, with a tiered system classifying
offenders automatically based on the offense committed. Id. at ¶ 17. However,
the Ohio Supreme Court has found that the changes enacted in the Adam Walsh
Act “imposed new or additional burdens, duties, obligations or liabilities on a past
transaction.” Id. at ¶ 22. Unlike Megan’s Law, the Court found that the Adam
Walsh Act could not be applied to “any offender who committed an offense prior
to [its] enactment * * *.” Id.
{¶10} Megan’s Law is still in effect for any offense committed before the
effective date of the Adam Walsh Act. See State v. Brunning, 134 Ohio St.3d 438,
2012-Ohio-5752, ¶ 22 (finding that Megan’s Law was not repealed with passage
of the Adam Walsh Act); State v. Sheriff, 3d Dist. Logan No. 8-11-14, 2012-Ohio-
656, ¶ 15 (finding offender properly classified under Megan’s Law where offense
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was committed prior to the enactment of Adam Walsh Act but conviction arose
after its effective date). When an offender is classified using the Adam Walsh Act
for an offense that occurred before its effective date, the case must be remanded
for reclassification. Williams at ¶ 23. This court has found that, on remand,
offenders should be classified under Megan’s Law. State v. Johnson, 3d Dist.
Wyandot Nos. 16-11-05, 16-11-06, 2013-Ohio-136, ¶ 9.
{¶11} Both the prosecution and the trial court understood that Panning was
subject to the law as it existed at the time of the offense and took steps to ensure
that they used the correct version of the statute when accepting his guilty plea,
even removing references to the current tier system of sex offender classification
in the petition to accept his guilty plea. However, the trial court classified Panning
as a Tier III Sex Offender under the Adam Walsh Act, instead of using what was
in effect at the time, Megan’s Law. As Panning’s offense occurred prior to the
effective date of the Adam Walsh Act, we find that he was improperly classified.
Therefore, we reverse the trial court’s classification of Panning as a Tier III Sex
Offender and remand this matter so that he can be properly classified according to
the law as it existed at the time of his offense.
{¶12} Accordingly, Panning’s first assignment of error is sustained.
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Assignment of Error No. II
{¶13} In his second assignment of error, Panning argues that the trial court
did not make the specific findings necessary to support the imposition of
consecutive sentences. We agree.
{¶14} The felony sentencing statutes were revised by H.B. 86, which took
effect on September 30, 2011. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-
Ohio-1892, ¶ 11, fn. 1. The legislation revived the presumption that “a sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or the
United States.” R.C. 2929.41(A); see also State v. Wells, 8th Dist. Cuyahoga No.
98428, 2013-Ohio-1179, ¶ 11. This presumption can be overcome under R.C.
2929.14(C), which requires a trial court to make specific findings on the record to
impose consecutive sentences.2 State v. Billenstein, 3d Dist. Mercer No. 10-13-10,
2014-Ohio-255, ¶ 67. “Specifically, the trial court must find that (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors set forth in R.C. 2929.14(C)(4)(a, b, or c) applies.” 3 Id. This court has
found that failure to make these findings at the hearing or in the judgment entry is
2
R.C. 2929.41(A) specifies other exceptions to this presumption. However, R.C. 2929.14(C) is the general
exception, and the only one that could apply to the circumstances of this case.
3
We note that while Panning committed the offense before the enactment of H.B. 86, substantially similar
findings were required at the time under R.C. 2929.14(E)(4) to overcome the presumption of concurrent
sentences.
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grounds for reversal. Id. at ¶ 70; State v. Upkins, 3d Dist. Shelby No. 17-12-13,
2012-Ohio-6114, ¶ 4.
{¶15} At the time of the proceedings in this case, Panning was serving a
prison term of 18 years as a result of prior convictions for rape in Paulding
County, Ohio.4 Therefore, absent the specific findings under R.C. 2929.14(C),
any sentence Panning receives must run concurrent to the sentence he is currently
serving.
{¶16} During the sentencing hearing, the trial court stated that it considered
the overriding purposes of felony sentencing under R.C. 2929.11 and that Panning
was not amenable to community control. In its judgment entry, the trial court
stated that it considered the felony sentencing factors in R.C. 2929.12 and
2929.13(B). However, nowhere in the record did the trial court find any of the
factors required by R.C. 2929.14(C). Instead, the trial court merely stated, both at
the hearing and in its judgment entry, that the sentence is to run consecutively to
Panning’s current sentence. Without any of the required findings in the record,
Panning’s sentence is improper. As a result, we reverse the trial court's imposition
4
It is undisputed that Panning was serving a prison sentence at the time he was convicted. However, we
note that the trial court did not identify the prior conviction to which the sentence it was imposing was to be
consecutive. This court has found that this type of error is a matter of form. State v. Raymond, 3d Dist.
Allen No. 1-13-23, 2014-Ohio-556, ¶ 13. “[A]n order imposing a consecutive sentence is incomplete when
it cannot be determined from a reading of the sentencing entry as to what case the current sentence is to be
served consecutive.” Id. at ¶ 29 (Rogers, J., dissenting). As this matter is being remanded for resentencing,
we urge the trial court to correct this error.
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of consecutive sentences and remand this matter so that the trial court can make
the proper findings, if they so exist, for the imposition of consecutive sentences.
{¶17} Accordingly, Panning’s second assignment of error is sustained.
Assignment of Error No. III
{¶18} In his third assignment of error, Panning argues that he received
ineffective assistance of counsel when his attorney failed to object to both the
sentence and the sex offender classification. Under App.R. 12(A)(1)(c) this
argument is moot and we elect not to address it.
{¶19} Having found error to Panning in his first and second assignments of
error, we reverse the trial court’s judgment and remand this matter for further
proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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