         [Cite as Arias v. State, 2017-Ohio-8961.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



VICTOR ARIAS,                                        :   APPEAL NO. C-160661
                                                         TRIAL NO. SP-1400011
        Petitioner-Appellant,                        :

  vs.                                                :     O P I N I O N.

STATE OF OHIO,                                       :

    Respondent-Appellee.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 13, 2017


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.
                     OHIO FIRST DISTRICT COURT OF APPEALS




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 sheriff’s 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 R.C. 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


                                               2
                     OHIO FIRST DISTRICT COURT OF APPEALS



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.



                                               3
                      OHIO FIRST DISTRICT COURT OF APPEALS



                                     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   legislation   is

       unconstitutional.    State v. Williams, 88 Ohio St.3d 513, 521, 728

       N.E.2d 342, 352 (2000).

       {¶8}     Under former R.C. 2950.09(A), an out-of-state 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 as a sex offender for life in the

state of his conviction. The sheriff did not make any legal or factual determinations

that are exclusively reserved to the judiciary.



                                                  4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    As we pointed out in Logue, former R.C. 2950.09(F)(2) applied only to

those offenders who had already been convicted of a nonexempt offense and who

were already required to register for life in another jurisdiction, because,

presumably, these individuals already had due process afforded to them on the issue

of dangerousness. Logue at ¶ 9. Because Arias was under an order from a Kansas

court to register as a sex offender for life, he was classified as a sexual predator and

his duty to register continued when he entered Ohio.            Judicial review of the

automatic classification is still afforded under the terms of former R.C.

2950.09(F)(2). Arias is entitled to a hearing before a judge in Ohio to determine,

after examining the law and facts, whether he should be exempted from Ohio’s

lifetime registration requirement. We hold that former R.C. 2950.09(A) does not

violate the separation-of-powers doctrine.          The second assignment of error is

overruled.

                                    Right to Travel

       {¶10} Arias’s third assignment of error alleges that former R.C. 2950.09

violates his constitutional right to travel because it treats in-state offenders

differently than out-of-state offenders by affording in-state offenders a hearing prior

to classifying them as sexual predators while automatically classifying out-of-state

offenders as sexual predators before they are afforded a hearing.

       {¶11} The United States Supreme Court has identified three components of

the constitutional right to travel: (1) it protects the right of a citizen of one state to

enter and leave another state; (2) it protects the right to be treated as a welcome

visitor rather than as a hostile visitor when temporarily in the second state; and (3) it

protects the right to be treated like other citizens of a state when the traveler decides

to become a permanent resident. Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518,

143 L.Ed.2d 689 (1999).

                                                5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} Legislation impacting the right to travel is evaluated under a

compelling-interest test; therefore, it must be narrowly tailored to serve a compelling

government interest. State v. Burnett, 93 Ohio St.3d 419, 755 N.E.2d 857 (2001).

       {¶13} Ohio has a compelling state interest in protecting its citizens from sex

offenders. Logue, 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d 900, at ¶ 10.

“An out-of-state offender already convicted of a nonexempt offense and deemed

dangerous enough to register for life by a court of competent jurisdiction may very

well pose a threat to the safety of Ohio’s citizens if he or she moves to this state. The

state, therefore, has a substantial interest in protecting the public from such a

threat.” Id.

       {¶14} Arias argues that he was treated differently than Ohio residents

convicted of sex offenses. But Arias was treated the same as similarily-situated

offenders moving into Ohio. In addition, former R.C. Chapter 2950 required that

Ohio citizens who had committed sex offenses in another state and were required to

register for life under that state’s laws be automatically classified as sexual predators

in Ohio if they returned after July 1, 1997. We hold that former R.C. 2950.09 was

narrowly tailored to include those sex offenders deemed most dangerous, including

those who, like Arias, were subject to lifetime-reporting requirements in another

jurisdiction. The third assignment of error is overruled.

       {¶15} The judgment of the trial court overruling Arias’s motion is affirmed.

                                                                    Judgment affirmed.

CUNNINGHAM and DETERS, JJ., concur.

Please note:
       The court has recorded its own entry this date.




                                               6
