[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
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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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       {¶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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Case No. 15-13-07


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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