State v. Vap ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,143
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 was initially granted probation in this case even
though he committed new crimes while he was on felony bond in another case. After Vap
committed several probation violations, the district court revoked his probation and
ordered him to serve his underlying prison sentence. Vap appeals, arguing the district
court abused its discretion by revoking his probation and imposing his underlying prison
sentence. Vap filed a motion for summary disposition in lieu of briefs 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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In 2013, while Vap was on probation in 12CR520 (having been convicted of four
counts of theft by deception), the State charged Vap with three more counts of theft by
deception in violation of K.S.A. 2012 Supp. 21-5801(a)(2) and (b)(3), each a nondrug
severity level 9 nonperson felony. In July 2014, Vap pled no contest to and was convicted
of all three counts of theft by deception. Under K.S.A. 2014 Supp. 21-6604(f)(4), or
Special Rule 10, the district court held Vap qualified for presumptive prison because he
committed the crimes while on felony bond. However, the district court granted probation
upon Vap's completion of a 30-day jail sanction.
In October 2014, the district court imposed a 22-month prison sentence with 12
months' postrelease supervision. The district court ordered Vap's sentence run
consecutive to the 12-month sentence imposed in 12CR520, for a controlling prison
sentence of 34 months. Vap was then granted probation for 36 months to begin after
serving a 30-day jail sentence. However, the district court allowed Vap 10 days to
attempt to sell some equipment and pay restitution before reporting to serve the 30-day
jail sentence.
The district court, among its many probation requirements, specifically required
Vap to: (1) refrain from working as a self-employed sole proprietor or independent
contractor; (2) refrain from possession, use, or consumption of drugs and alcohol; and (3)
submit to random breath, blood, or urine testing as directed by his probation officer.
Shortly after the sentencing hearing, the State filed a motion for review to
determine what efforts Vap had made to liquidate assets and pay restitution. Vap
provided evidence he paid over $48,000 in restitution, nearly satisfying his outstanding
balance, and further asked the district court to modify his jail sentence to house arrest due
to health issues. The district court granted Vap's request and modified his jail sentence to
house arrest, allowing him to leave for work so long as he was not working as an
independent contractor.
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In August 2015, the State filed a probation violation warrant, alleging Vap
violated the terms of his probation by entering a contract for concrete work and other
labor at a private residence and not completing the work. At the revocation hearing in
October 2015, Vap admitted to the alleged violations but argued for leniency because he
had removed himself from the construction project and refunded the victim. The district
court revoked and reinstated Vap's 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, the State filed another warrant, alleging Vap again violated the
terms of his probation by testing positive for THC. The district court also acknowledged
this probation violation at the March 2020 hearing, and the dispositional hearing was
continued to July 2020. At the July 2020 hearing, the district court revoked Vap's
probation in this case, 13CR1531, and in his other case, 12CR520. 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 while on probation.
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 already 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
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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). The burden is on Vap to show the district court abused its
discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
Vap identifies no error of fact or law underlying the district court's decision. He
admitted to violating the terms of his probation when he continued working as a self-
employed contractor.
Initially, the district court did not send Vap to prison for committing these crimes
while on felony bond in 12CR520, and it also gave him another chance when it revoked
and reinstated his probation in October 2015 after he admitted to more violations for
working as a self-employed contractor. The district court provided Vap with multiple
opportunities to comply with the terms of his probation, and he failed to do so. Finally, in
July 2020, the district court determined Vap had exhausted his opportunities to remain on
probation and should not be rewarded for neglecting his probation obligations 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
first granting him a departure sentence to probation and by later imposing intermediate
sanctions for his probation violations. See K.S.A. 2020 Supp. 22-3716(c)(7)(B); K.S.A.
2020 Supp. 22-3716(c)(1)(C). Vap failed to be successful on probation. We observe no
abuse of discretion by the district court.
Affirmed.
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