Opinion
111,246.
04-03-2015
STATE of Kansas, Appellee, v. Nathan INKELAAR, Appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nathan Inkelaar appeals the district court's decision denying his motion to arrest judgment pursuant to K.S.A. 22–3503. Based on our Supreme Court's recent decision in State v. Sellers, No. 109,080, 2015 WL 968390 (Kan.2015), we find that K.S.A. 22–3503 does not provide a procedural mechanism for Inkelaar to challenge the adequacy of his charging document. Thus, we affirm the district court's judgment on procedural grounds without addressing the merits of Inkelaar's claims.
The facts surrounding Inkelaar's case are set forth in detail in State v. Inkelaar, 293 Kan. 414, 264 P.3d 81 (2011), and only those facts relevant to the consideration of his motion to arrest judgment will be repeated here. A jury found Inkelaar guilty of rape, aggravated indecent liberties with a child, attempted aggravated indecent liberties with a child, and three counts of aggravated criminal sodomy. The district court sentenced Inkelaar under Jessica's Law to life without the possibility of parole for 25 years for the convictions of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child. The court ordered those sentences to run concurrently to one another, as well as to Inkelaar's grid-box sentences on the remaining counts.
On direct appeal, Inkelaar argued that the district court lacked jurisdiction to sentence him under Jessica's Law because the charging document did not state his age at the time of each alleged charge of aggravated indecent liberties with a child. Inkelaar, 293 Kan. at 433. He further claimed that because a defendant's age is an essential element of a Jessica's Law crime, the district court erred by failing to instruct the jury to find that he was 18 years of age or older at the time of each of these offenses. 293 Kan. at 433. Our Supreme Court rejected Inkelaar's jurisdictional argument and, though it found the district court's failure to instruct the jury on Inkelaar's age was error, it concluded that the error was harmless. 293 Kan. at 433–37.
More than a year after his convictions and sentences were affirmed, Inkelaar filed a motion to arrest judgment pursuant to K.S .A. 22–3503. He again complained that the charging document and jury instructions were defective because they failed to instruct the jury on the elements of his age. While acknowledging our Supreme Court's opinion in his direct appeal, Inkelaar asserted that the district court could review his claims based on its subsequent decision in State v. Portillo, 294 Kan. 242, 274 P.3d 640 (2012). In Portillo, our Supreme Court recognized that K.S.A. 22–3503 permits a district court to arrest judgment sua sponte whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained. 294 Kan. at 256.
Following a May 10, 2013, hearing at which both parties argued their respective positions, the district court denied Inkelaar's motion to arrest judgment. The district court found: (1) the complaint against Inkelaar was not defective; (2) Inkelaar only had the authority to file a motion for arrest of judgment pursuant to K.S.A. 22–3502 and that such a motion had to be filed within 10 days after the verdict of guilty; (3) res judicata barred relief, as all of Inkelaar's issues were or could have been raised on direct appeal; and (4) the Kansas Supreme Court's decision in Portillo, 294 Kan. 242, was not retroactively applicable. Inkelaar timely appealed the district court's judgment.
Inkelaar's sole argument on appeal is that the district court erred in denying his motion to arrest judgment pursuant to K.S.A. 22–3503. The State responds that Inkelaar is procedurally barred from filing a motion to arrest judgment pursuant to K.S.A. 22–3503. The State also argues that Inkelaar's claims are barred by the doctrine of res judicata because the issues were raised or could have been raised in his direct appeal.
Before we address the merits of this appeal, we must first consider the threshold issue of whether Inkelaar may raise a collateral challenge to the charging document in a K.S.A. 22–3503 motion filed after his direct appeal became final. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
Two statutes are relevant in analyzing this issue. The first, K.S.A. 22–3502 (Torrence 2007), provides in pertinent part:
“The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty.”
Inkelaar cannot seek relief under K.S.A. 22–3502 because he is well outside the time limit for filing his motion for arrest of judgment. Instead, he seeks to bring his case under the authority of K.S.A. 22–3503 (Torrence 2007), which states: “Whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.” Inkelaar asserts that K.S.A. 22–3503 “provides no limitations upon the manner in which the court can ‘[become] aware of the existence of grounds which would require that a motion for arrest of judgment be sustained.” ’ He emphasizes language in our Supreme Court's decision in Portillo, 294 Kan. at 256, noting the absence of a time limit in K.S.A. 22–3503.
But since the parties filed their briefs, the Kansas Supreme Court issued its opinion in Sellers, holding that K.S.A. 22–3503 does not provide a procedural mechanism for a criminal defendant to challenge the adequacy of a charging document on a motion in the district court after a direct appeal has been pursued and decided. 2015 WL 968390, Syl. ¶ 2. Inkelaar's case is virtually identical to Sellers. Like Inkelaar, Sellers filed a motion to arrest judgment pursuant to K.S.A. 22–3503 and argued that the charging document in his Jessica's Law case failed to include the essential element that he was age 18 or older at the time of the alleged crimes. Sellers relied on language in Portillo, 294 Kan. at 256, which states that “ ‘K.S.A. 22–3503 allows the trial court to arrest judgment without a motion by defendant and without the time constraints of K.S.A. 22–3502.’ “ Sellers, 2015 WL 968390, at *1.
Our Supreme Court in Sellers noted that nearly 20 years before Portillo was decided, it had imported the time limit set out in K.S.A. 22–3502 into K.S.A. 22–3503. 2015 WL 968390, at *5 ; see State v. Sims, 254 Kan. 1, 10, 862 P.2d 359 (1993). The Sellers court went on to distinguish Portillo and rejected Sellers' attempt to circumvent the time limitation in K.S.A 22–3502 by filing a motion under K.S.A. 22–3503 :
“The procedural posture of this case bears no resemblance to that before us in Portillo or in Sims, each of which contemplated district judge action before the district court was divested of jurisdiction by the docketing of a direct appeal. They also contemplated sua sponte district judge action, not action prompted by the filing of a defense motion. This is in keeping with the plain language of the statute, which specifies that the court may arrest judgment ‘without motion.’ K.S.A. 22–3503.
“Were we to interpret or construe K.S.A. 22–3503 to apply when there has been a defense motion, K.S.A.2013 Supp. 22–3502 and its time limitation would be rendered a ity. Such a holding would not only contradict the plain language of K.S.A. 22–3503 ; it also would run afoul of our usual presumption that the legislature does not enact meaningless statutes. [Citation omitted.]
“K.S.A. 22–3503 is not a procedural vehicle that supports a defense motion for arrest of judgment long after a direct appeal has been pursued and decided. It is meant to permit a district judge to arrest judgment sua sponte before a direct appeal is taken.” Sellers, 2015 WL 968390, at *6.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Based on our Supreme Court's holding in Sellers, we find that K.S.A. 22–3503 does not provide a procedural mechanism for Inkelaar to challenge the adequacy of his charging document. Therefore, the district court did not err in denying Inkelaar's motion to arrest judgment pursuant to K.S.A. 22–3503.
Affirmed.