Under K.S.A. 2011 Supp. 21-5111(m), a pellet rifle is not a firearm because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J, PIERRON and LEBEN, JJ.
Timothy Wayne Craddick appeals his sentence for two counts of attempted aggravated assault. Craddick pointed his Ruger Airhawk pellet rifle at his victims and threatened to shoot them if they did not put his dog on the ground. The district court found that Craddick had committed his crimes with a firearm, which triggered a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h). Craddick's pellet rifle was not a firearm under K.S.A. 2011 Supp. 21-5111(m) because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas. The district court's erroneous firearm designation requires us to vacate Craddick's sentence and reverse and remand his case for resentencing.
The State charged Craddick with two counts of aggravated assault with an Airhawk air rifle. At the preliminary hearing, Craddick's victims testified that on September 18, 2011, he threatened to shoot them with his " rifle gun." The information was subsequently amended to charge two counts of attempted aggravated assault with a " pellet rifle." Craddick pled no contest to the amended charges, and the district court adopted the preliminary hearing evidence as the factual basis for his plea.
The presentence investigation (PSI) report recommended the district court apply the special sentencing rule that changes a guidelines sentence from presumptive probation to presumptive prison if the person felony was committed with a firearm. Craddick filed an objection to the PSI report. He argued he did not commit a person felony with a firearm, triggering a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h), because his Ruger Airhawk pellet rifle did not qualify as a firearm under 2011 Supp. K.S.A. 21-5111(m).
The State agreed that Craddick had used a Ruger Airhawk pellet rifle to commit his crimes. After hearing the arguments of counsel, the district court found that Craddick's crimes were committed with a firearm. Consequently, the special rule was applied and Craddick was sentenced to a controlling term of 11 months' imprisonment— a mitigated
guidelines sentence of 11 months on one count and a standard guidelines sentence of 6 months on the other count, to run concurrently. He timely appeals.
Craddick argues the district court should not have applied the special rule that changed his presumptive sentence from probation to imprisonment because the pellet gun he used to commit his crimes is not a firearm ...