Appeals court rejects rapist’s 3rd appeal

DAVE MOSIER/independent editor

LIMA — The Ohio Third District Court of Appeals has rejected the latest in a series of appeals filed by a man convicted of a sex crime that occurred more than a decade ago.

In his latest appeal, Bobby L. Panning claimed then-Van Wert County Common Pleas Court Charles D. Steele erred in not accepting his request to withdraw his guilty plea to a charge of sexual battery, a felony of the third degree.

Judge Steele rejected the motion, citing a previous ruling that trial courts have no jurisdiction over a criminal case after an appellate court has affirmed a conviction, which was done in Panning’s case. Panning’s appeal, through attorney Tyler Dunham, asserted the ruling does not apply to his case because of what he asserted was “newly discovered evidence,” which he said fell under the “collateral issues” exception to the rule.

In addressing the appeal, Judge Willamowski noted that the new evidence consisted of notarized statements from Panning’s ex-wife, Tonya Kline, and his current wife, Victoria Panning. Kline’s statement concerned visits of Panning with his children and the location of the residence of Panning and her residence at the time, but did not refer to whether Panning was guilty or innocent of the charges against him.

Victoria Panning’s statement referred to meetings Panning had with then-attorney Scott Gordon, who Panning has stated did not provide him with sufficient counsel. Mrs. Panning’s statement addresses inconsistencies in Gordon’s counsel, in which he reportedly first told Panning he would not let him take a guilty plea because the prosecution had no evidence, then later advised him to plead guilty, “otherwise, Mr. Panning would be spending the rest of his life in prison.”

However, neither affidavit refers to newly discovered evidence or showed proof of threat or coercion, as Panning had asserted in an earlier appeal, prior to his entering a guilty plea in the case.

The appellate judge then rejected Panning’s assertion that the judicial rule did not apply to his case because of collateral issues.

“This exception does not apply here because Panning did not raise a collateral issue in the trial court, but attempted to challenge his conviction, which was in direct conflict with the judgment of the court of appeals,” Willamowski wrote.

The appellate judge also rejected the idea that the two women’s statements were, in fact, new evidence.

“Indeed, the facts to which Tonya and Victoria attested, such as location of Panning and Tonya’s residence, where the visitations with the children occurred, and advice Panning received from his counsel, were all known to Panning at the time of his plea and at the time of his prior appeals.”

Another citation by Panning, which dealt with a motion for a new trial, rather than a motion to withdraw a guilty plea, was also rejected by Willamowski, who noted Panning had not filed a motion for a new trial, which would have to be based on discovery of new evidence in the case.

The appeal is the third to be filed over Panning’s conviction on sexual battery for allegedly raping his then-8-year-old son in 2002. Judge Steele sentenced Panning to 60 months in prison on that charge, while ordering the sentence to be served consecutive to an 18-year sentence Panning was serving on an unrelated rape conviction in Paulding County.

The first appeal, filed to contest sentencing errors in his 2013 conviction, led to the case being remanded to the trial court because of technical issues, such as the fact that there was no sexual offender tier system when Panning committed the crime in 2002, invalidating Judge Steele’s classification of Panning as a Tier III sex offender. He was later given a “sexual predator” classification, consistent with the law in effect in 2002.

Panning was resentenced to the 60-month prison term in August 2014, and he appealed that sentence, alleging that he had ineffective legal counsel. That appeal was rejected by the appeals court, with Willamowski again writing the opinion. That decision noted that, at no time did Panning make a motion to withdraw his guilty plea, and that the defendant’s only reason for seeking to withdraw the plea was because of a “change of heart.”