NOT DESIGNATED FOR PUBLICATION
No. 123,142
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEFFREY T. VAP,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed March 26, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: Jeffrey T. Vap violated his probation for a third time resulting in the
district court revoking his probation and ordering him to serve his underlying sentence.
Vap appeals, arguing the district court abused its discretion when it revoked his probation
and ordered him to serve his underlying sentence. Vap filed a motion for summary
disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The State
responded to Vap's motion and requested we affirm the district court's judgment. We
granted Vap's motion for summary disposition and, finding no error, we affirm.
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Vap, a general contractor, was convicted at a bench trial in 12CR520 of four
counts of theft by deception, each in violation of K.S.A. 2011 Supp. 21-5801(a)(2) and
(b)(3), a nondrug severity level 9 nonperson felony.
The district court sentenced Vap to consecutive sentences totaling 12 months of
imprisonment, based on his criminal history score of I, and then granted him probation
for 36 months with 12 months of postrelease supervision. As a condition of probation,
Vap was prohibited from working as a self-employed sole proprietor or independent
contractor. Vap was ordered to pay $22,795.20 in restitution. Vap appealed his
convictions and sentences, and another panel of our court affirmed. See State v. Vap, No.
111,798, 2015 WL 4716309, at *1 (Kan. App. 2015) (unpublished opinion).
In December 2013, Vap appeared for a probation violation hearing on allegations
he failed to refrain from working as a self-employed sole proprietor or independent
contractor as ordered. After the district court found he violated his probation, it ordered
Vap to serve a 10-day jail sanction and to pay his restitution.
In July 2014, Vap pled guilty in another criminal case in Sedgwick County,
13CR1531, for three more counts of felony theft by deception. The district court
sentenced Vap to 22 months' imprisonment, consecutive to the 12-month sentence in
12CR520. The district court also ordered Vap to pay another $26,000 in restitution and
serve a 30-day jail sentence.
In August 2015, the State moved to revoke his probation, alleging Vap again
violated the terms of his probation by entering a contract for labor at a private residence
and not completing the work. Vap admitted to the alleged violations but argued for
leniency because he had removed himself from the construction project and refunded the
victim. At a probation revocation hearing, the district court revoked and reinstated Vap's
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probation, extended his probation until July 2017, and ordered him to serve a 30-day jail
sanction.
In May 2016, the State requested a new warrant, alleging Vap violated the terms
of his probation by accepting a cash deposit for a construction job he never started or
completed. The district court held a probation revocation hearing in March 2020, and
Vap did not contest the allegations from the May 2016 warrant.
In February 2020, Vap tested positive for THC, another violation of the terms of
his probation. The district court also acknowledged this violation at the March 2020
hearing where the dispositional hearing was continued to July 2020. At the July 2020
hearing, the district court revoked Vap's probation in this case, 12CR520, and his other
case, 13CR1531. The district court ordered Vap to serve his original prison sentence
because of his continual failure to comply with the terms of probation. The district court
explained Vap was not amenable to probation and, if his sentence was modified again,
the district court would be rewarding almost 10 years of neglected obligations to the
court.
On appeal, Vap contends the district court erred when it revoked his probation and
ordered him to serve his underlying prison sentence because he has significant health
issues and has paid restitution to make the victims whole.
Once the district court has determined the defendant has violated the terms of
probation, the decision to revoke probation lies in the discretion of the district court. State
v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an
abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469,
430 P.3d 931 (2018). Vap has the burden to show the district court abused its discretion.
See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
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Vap identifies no error of fact or law underlying the district court's decision. He
violated the terms of his probation several times when he continued to work as a self-
employed contractor.
At his third probation violation hearing in July 2020, the district court determined
Vap had exhausted his opportunities to remain on probation and should not be rewarded
for neglecting his obligation to the court for nearly 10 years.
Vap has not demonstrated the district court's decision was arbitrary, fanciful, or
unreasonable. The district court was well within its statutory authority and sound
discretion to revoke Vap's probation and order him to serve his underlying sentence after
twice imposing intermediate sanctions. See K.S.A. 2020 Supp. 22-3716(c)(1)(C). The
district court did not abuse its discretion.
Affirmed.
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