Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
Justice and Policy Center and David A. Singleton, for
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
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.
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.
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).
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.
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.
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
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 ...