Graham v. Carrington Place Prop. Owners Ass'n, Inc., Case No. 116,968
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
| Writing for the Court | OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE |
| Citation | 456 P.3d 1137 |
| Parties | Dustin B. GRAHAM and Courtney J. Graham, Husband and Wife, Plaintiffs/Appellants, v. CARRINGTON PLACE PROPERTY OWNERS ASSOCIATION, INC., a Domestic Not-for-Profit Corporation, and The City of Norman, a Political Subdivision of the State of Oklahoma, Defendants/Appellees. |
| Docket Number | Case No. 116,968 |
| Decision Date | 25 September 2018 |
456 P.3d 1137
Dustin B. GRAHAM and Courtney J. Graham, Husband and Wife, Plaintiffs/Appellants,
v.
CARRINGTON PLACE PROPERTY OWNERS ASSOCIATION, INC., a Domestic Not-for-Profit Corporation, and The City of Norman, a Political Subdivision of the State of Oklahoma, Defendants/Appellees.
Case No. 116,968
Court of Civil Appeals of Oklahoma, Division No. 4.
FILED SEPTEMBER 25, 2018
Mandate Issued: June 26, 2019
John M. Dunn, THE LAW OFFICES OF JOHN M. DUNN, PLLC, Tulsa, Oklahoma, for Plaintiffs/Appellants
Blake Sonne, SONNE LAW FIRM, PLC, Norman, Oklahoma, for Defendant/Appellee Carrington Place Property Owners Association, Inc.
Rickey J. Knighton II, Jeanne M. Snider, Kristina L. Bell, ASSISTANT CITY ATTORNEYS, CITY OF NORMAN, Norman, Oklahoma, for Defendant/Appellee City of Norman
OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:
¶1 Dustin and Courtney Graham appeal from the trial court's order granting summary judgment in favor of Defendants in this declaratory judgment action. In August 2014, Mr. Graham entered a guilty plea to several felony counts in the District Court of Oklahoma County. He was thereafter incarcerated in the custody of the Oklahoma Department of Corrections (DOC) until his release in May 2016.
¶2 While Mr. Graham was incarcerated, Ms. Graham purchased real property in Norman, Oklahoma located within 2,000 feet of a park established and operated by Defendant Carrington Place Property Owners Association,
Inc., a homeowners' association. Mr. Graham is listed as a joint tenant on the deed, along with Ms. Graham and one other individual, and the deed is dated October 29, 2015. The property was purchased with the intention that Mr. Graham would move there to live with his wife, Ms. Graham, immediately following his release from custody.
¶3 The Grahams state they were aware Mr. Graham's criminal offenses would require him to register as a sex offender pursuant to the Sex Offenders Registration Act, 57 O.S. Supp. 2012 §§ 581 - 590.2 (SORA), and that Mr. Graham would be unable to live within 2,000 feet of a statutorily restricted area following his release from incarceration. However, at the time of Mr. Graham's conviction, SORA did not set forth any residential restriction pertaining to parks controlled by a homeowners' association. That is, at the time of Mr. Graham's conviction, as well as at the time of the purchase of the property and execution of the deed, SORA provided, in pertinent part, as follows:
It is unlawful for any person registered pursuant to [SORA] to reside, either temporarily or permanently, within a two-thousand-foot radius of ... a playground or park that is established, operated or supported in whole or in part by city, county, state, federal or tribal government ....
57 O.S. Supp. 2012 § 590(A). Effective November 1, 2015, however, this provision was amended as follows:
It is unlawful for any person registered pursuant to [SORA] to reside, either temporarily or permanently, within a two-thousand-foot radius of ... a playground or park that is established, operated or supported in whole or in part by a homeowners' association or a city, town, county, state, federal or tribal government ....
57 O.S. Supp. 2015 § 590(A) (emphasis added).
¶4 The Grahams argue the version of SORA in effect at the time of Mr. Graham's conviction should apply. Indeed, it is undisputed they were in compliance with this version of SORA because the park that is located near their property was not established and is not operated or supported in whole or in part by a city, county, state, federal or tribal government. However, the Grahams acknowledge Mr. Graham would stand in violation of the version of SORA in effect at the time of his release and registration — i.e., the version of § 590 that went into effect on November 1, 2015, during his incarceration — because the property is located within 2,000 feet of a park established, operated or supported by a homeowners' association.
¶5 Around the time of Mr. Graham's release from custody in May 2016, he executed an Oklahoma Sex Offender Registration Form on June 9, 2016.1 Mr. Graham also submitted a Sex Offender Registration Form to the Norman Police Department, executed on May 23, 2016, as a result of his intention of moving to the Norman property upon his release from custody.
¶6 Based on the undisputed facts, the trial court awarded summary judgment in favor of Defendants, who argued that the version of § 590 in effect at the time of Mr. Graham's release from custody should apply. The trial court agreed and stated that, in line with the Oklahoma Supreme Court's analysis in Starkey v. Oklahoma Department of Corrections , 2013 OK 43, 305 P.3d 1004, the version of SORA "which is applicable to a defendant is the version in effect at the time a defendant becomes subject to the act." The order states that "some offenders may become subject to the act upon conviction, [but] the statute as well as the ruling in Starkey make it clear that this is not always the case." The trial court concluded in its order that Mr. Graham did not become subject to SORA until his release and registration as a sex offender and, therefore, the applicable version of SORA is the version in effect at the time of his release — i.e., the version that prohibits Mr. Graham from residing within 2,000 feet of a playground or park that is established,
operated or supported in whole or in part by a homeowners' association.
¶7 The trial court also determined that application of the version in effect at the time of Mr. Graham's release from custody did not constitute an ex post facto violation. The trial court stated, among other things, that the version in effect at the time of Mr. Graham's release does not
expose [Mr. Graham] to a greater punishment .... The undisputed facts of this case indicate that [Mr. Graham] never resided at the residence in question, that the residence was purchased while [he] was incarcerated and therefore that he is not being expelled from his residence as a result of the amendment which occurred two days after the property was purchased. He retains the same property interest in the residence that he had at the time that the new statute went into effect.
From this order, the Grahams appeal.
STANDARD OF REVIEW
¶8 "This appeal stems from a grant of summary judgment, which calls for de novo review." Wood v. Mercedes-Benz of Okla. City , 2014 OK 68, ¶ 4, 336 P.3d 457 (citation omitted). Under the de novo standard, this Court is afforded "plenary, independent, and non-deferential authority to examine the issues presented." Harmon v. Cradduck , 2012 OK 80, ¶ 10, 286 P.3d 643 (citation omitted). Summary judgment is appropriate "[i]f it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law[.]" Okla. Dist. Ct. R. 13(e), 12 O.S. Supp. 2013, ch. 2, app.
ANALYSIS
I. If it is the legislative intent that the residential restrictions found in § 590 of SORA are to be applied prospectively, then, pursuant to Cerniglia v. Oklahoma Department of Corrections, the applicable version of SORA is that which was in effect at the time of Mr. Graham's conviction.
¶9 In Starkey v. Oklahoma Department of Corrections , 2013 OK 43, 305 P.3d 1004, the plaintiff "pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas." Id. ¶ 1. The plaintiff then moved to Oklahoma later that same year. The Starkey Court explained that, in 2007, the Oklahoma Legislature "created a system to assign sex offenders a level of 1 to 3 based upon their risk." Id. ¶ 28 (footnote omitted). The plaintiff in Starkey , despite having received his sentence almost ten years prior to these 2007 amendments, was subsequently assigned by the DOC "a level 3 life-time registration classification with no opportunity for a hearing." Id. ¶ 8. The Starkey Court explained that, based on the specific language used by the Legislature in...
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