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Arias v. State

Court of Appeals of Ohio, First District, Hamilton

December 13, 2017

VICTOR ARIAS, Petitioner-Appellant,
v.
STATE OF OHIO, Respondent-Appellee.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. SP-1400011

          Ohio Justice and Policy Center and David A. Singleton, for Petitioner-Appellant,

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellee.

          OPINION

          MOCK, PRESIDING JUDGE.

         {¶1} On November 17, 2003, in Kansas, petitioner-appellant Victor Arias was convicted of rape, and required to register for life as a sex offender. He subsequently moved to Ohio. The Hamilton County Sheriff designated Arias as a sexual predator under former R.C. Chapter 2950 ("Megan's Law") due to his Kansas lifetime-registration. Arias filed a petition for reclassification under former R.C 2950.09(F). Arias also filed a motion to vacate the sheriffs sexual-predator classification, claiming violations of due process, the separation-of-powers doctrine, and the right to travel. The trial court overruled the motion. Arias has appealed. We affirm the trial court's judgment.

         Due Process

         {¶2} Arias's first assignment of error alleges that the trial court erred in determining that former R.C. 2950.09 did not violate due process.

         {¶3} Pursuant to former R.C. 2950.09(A), an out-of-state sex offender was automatically classified as a sexual predator in Ohio if he had been convicted of a nonexempt sex offense and was required to register for life as a sex offender in the state where he was convicted. The offender may challenge the sexual-predator classification by a petition filed pursuant to the procedures provided under former R.C. 2950.09(F). The trial court may determine that the out-of-state sex offender is not a sexual predator if the offender proves by clear and convincing evidence that the foreign jurisdiction's registration requirement is not "substantially similar" to Ohio's sexual-predator classification under former RC. Chapter 2950. Phan v. Leis, 1st Dist. Hamilton No. C-050842, 2006-Ohio-5898, ¶ 12. If the offense is substantially similar, the offender is afforded a hearing, at which he has the burden to demonstrate by clear and convincing evidence that he is not likely to commit a sexually-oriented offense in the future. State v. Pasqua, 157 Ohio App.3d 427, 2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st Dist).

         {¶4} Arias argues that his "automatic" classification by the sheriff as a sexual predator in Ohio deprived him of "essential liberty interests without due process of law, " and that "the availability of a subsequent hearing did nothing to prevent or correct the original deprivation." But Arias is already under a duty imposed by the state of Kansas to register for life as a sex offender. His "automatic" classification as a sexual predator under Ohio law does not change that status. As we pointed out in Logue v. Leis, 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d 900, ¶ 7 (1st Dist.), "[t]he purpose of an R.C. 2950.09(F)(2) hearing is to determine whether an offender already convicted of a nonexempt offense and already required to register for life as a sexual offender in another state should be exempt from Ohio's lifetime registration and notification requirements." In Logue, we applied the due-process test set forth by the United States Supreme Court in Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to hold that "due process is not violated when an out-of-state offender, already required to register for life in another state, is required to bear the burden of persuasion on the issue of recidivism when he or she petitions for reclassification under R.C. 2950.09(F)(2)." And we reaffirmed our holding in Pasqua, that "due process is met in an R.C. 2950.09(F)(2) hearing when a sex offender has notice and an opportunity to be heard." Logue at ¶ 12.

         {¶5} Former R.C. 2950.09(F)(2) meets the requirements of due process by affording Arias a reclassification hearing before a judge, with notice and an opportunity to be heard as to whether he should be exempt from Ohio's lifetime registration and notification requirements. The first assignment of error is overruled.

         Separation of Powers

         {¶6} Arias's second assignment of error alleges that former R.C. 2950.09(A) violated the separation of powers between the judicial and executive branches of state government. Arias argues that because the legislature gave the sheriff the initial responsibility under former R.C. 2950.09(A) to determine whether an out-of-state offender was a sexual predator, the statute usurped the judiciary's power to make that determination. He further argues that providing a hearing under former R.C. 2950.09(F)(2) at which the offender could challenge his classification before a judge did not cure the unconstitutionality of the initial classification by the sheriff.

         {¶7} In State v. Thompson, 92 Ohio St.3d 584, 752 N.E.2d 276 (2001), the Ohio Supreme Court stated,

It is well settled that legislation enjoys a presumption of constitutionality. State ex rel. Haylett v. Ohio Bur. Of Workers' Comp.,87 Ohio St.3d 325, 328, 720 N.E.2d 901, 904 (1999). A statute will be given a constitutional interpretation if one is reasonably available. State v. Keenan,81 Ohio St.3d 133, 150, 689 N.E.2d 929, 946 (1998). The constitutional presumption remains unless it is proven beyond a reasonable doubt that the ...

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