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State v. Inkelaar

August 17, 2007

STATE OF KANSAS, APPELLEE,
v.
MARCUS A. INKELAAR, APPELLANT.



Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge.

SYLLABUS BY THE COURT

1. Whether jurisdiction exists is a question of law subject to unlimited appellate review. An appellate court has a duty to question jurisdiction on its own initiative. If the record shows that there is no jurisdiction for the appeal, the appeal must be dismissed.

2. The right to appeal is purely statutory and is not contained in either the Kansas or federal Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to consider an appeal only if the appeal is taken in the manner prescribed by statute.

3. To challenge a conviction or sentence, a defendant must file a notice of appeal within 10 days of sentencing under K.S.A. 22-3608(c). If the defendant fails to timely file a notice of appeal, the appeal should be dismissed for lack of jurisdiction unless one of the limited exceptions exists under State v. Phinney, The opinion of the court was delivered by: Brazil, J.

Affirmed in part and dismissed in part.

Before MARQUARDT, P.J., McANANY, J., and BRAZIL, S.J.

Marcus A. Inkelaar appeals from the district court's order revoking his probation. Inkelaar also appeals from the court's original sentencing order assessing him attorney fees to reimburse the Board of Indigents' Defense Services (BIDS). See K.S.A. 2006 Supp. 22-4513. We affirm the revocation of probation and dismiss the challenge to the BIDS fees for lack of jurisdiction.

Inkelaar was charged in Sedgwick County District Court with one count of rape and one count of aggravated indecent liberties with a child. The rape charge alleged Inkelaar engaged in sexual intercourse with a victim under the age of 14; the aggravated indecent liberties charge alleged Inkelaar engaged in sexual intercourse with another girl who was 14 years old.

Thereafter, Inkelaar entered into a plea agreement with the State in which he agreed to plead guilty to two amended counts of attempted aggravated indecent liberties with a child, severity level 5 felonies. The agreement also provided that the State would recommend the upper number in the appropriate sentencing grid box with the sentences to run concurrently. Under the agreement, the defendant was free to request probation, although the State would argue that the presumptive sentence should be imposed.

On April 8 and May 27, 2004, sentencing hearings were held. The court found Inkelaar's crime fell in the 5-I border box and that the presumptive sentencing range was 31-32-34 months' incarceration. The court continued the original sentencing hearing in order to determine whether Inkelaar would qualify for Labette Correctional Conservation Camp (Labette). At a subsequent hearing, the court ultimately placed Inkelaar on probation for 36 months and imposed an underlying sentence of 32 months' incarceration. Inkelaar was ordered to successfully complete Labette. The court also ordered Inkelaar to reimburse BIDS for $605 in attorney fees and $50 administrative fee.

Inkelaar successfully completed the Labette program in November 2004 and returned to Sedgwick County. In March 2005, a warrant was issued alleging Inkelaar violated his probation by failing to attend sexual offender treatment as directed and failing to maintain full-time employment. Inkelaar stipulated to violating his probation as alleged and requested his probation be reinstated. The court ultimately revoked and then reinstated Inkelaar's probation; the court extended Inkelaar's probation and assigned him to residential community corrections.

In June 2005, a second warrant was issued alleging Inkelaar violated his probation by violating the law and by failing to maintain full-time employment. During the hearing, Tilja Day Cloud testified that she was a managing partner at a Sonic restaurant and that she hired Inkelaar to work as a cook. Cloud testified that on June 2, 2005, she was in the restaurant office with the bag containing the $300 the restaurant had on hand to start the day. Inkelaar was sitting in the office waiting to clock in when Cloud left the office to assist another employee, covering the money bag with a couple of books and magazines. When Cloud returned to the office, most of the money was gone from the bag. Cloud told everyone in the restaurant she would give them a chance to return the money by placing it in the bathroom, but no one returned the money. Cloud then called police.

Cloud and the police reviewed the restaurant's security tapes for about an hour and determined Inkelaar picked up the stack of magazines and money bag, walked out of the view of the camera, and then returned with the magazine stack. Thereafter, Inkelaar was arrested and searched; they found no money on him. During the hour between the money disappearing and his arrest, however, Inkelaar's girlfriend had visited him at the restaurant.

The court ultimately found there was sufficient circumstantial evidence to establish Inkelaar stole money from his employer. The court then revoked Inkelaar's probation and ordered him to serve the original ...


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