Friday, November 01, 2013

Pellet gun is not a "firearm" requiring presumptive prison sentence

Korey Kaul won in State v. Craddick, No. 108,335 (Kan. App. 2013) reversing the sentence in a Douglas County case for attempted aggravated assault.  Here is coverage of the case by the LJ World.  The court described the issue as follows:
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 court relied on the new statutory definition of "firearm" under  K.S.A. 2011 Supp. 21-5111(m), which defines it as "any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion."  This definition is inconsistent with previous case law, which held that "[a] firearm [has the] design or capacity to propel a projectile by force of an explosion, gas, or other combustion."  State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980).  This case law definition had led the KSC to hold that a pellet gun was a "firearm" for purposes of a special sentencing rule because the pellet gun was "capable of and was designed to 'propel a projectile by force of . . . gas . . . .'"  State v. Fowler, 238 Kan. 213, 217, 708 P.2d 539 (1985).  The holding in Craddick suggests that district courts should no longer find that air rifles or pellet guns require a presumptive prison sentence under K.S.A. 21-6804(h).

The case could have a significant impact in aggravated assault prosecutions, where a pellet gun is often used in the crime.  It will not affect the conviction, but it will keep the special sentencing rule in K.S.A. 21-6804(h) from making these severity level 7 crimes (which are presumptive probation for criminal history C and lower) from becoming presumptive prison offenses when an a pellet gun or bb gun was used.

[Update: the state did not file a PR and the mandate issued on December 5, 2013.]

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