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Graham v. Carrington Place Property Owners Association, Inc.

Court of Appeals of Oklahoma, Division IV

September 25, 2018

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.

          Mandate Issued: 06/26/2019

          APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA HONORABLE LORI M. WALKLEY, TRIAL JUDGE

          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

          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 ...


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