PEOPLE OF MI V GERELL CHARLES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 10, 2009
Plaintiff-Appellee,
V
No. 283452
Wayne Circuit Court
LC No. 07-009605-FH
GERELL CHARLES,
Defendant-Appellant.
Before: Donofrio, P.J. and K.F. Kelly and Beckering, JJ.
MEMORANDUM.
Following a bench trial, defendant was convicted of possession of less than 25 grams of
heroin, MCL 333.7403(2)(a)(v), and possession of a firearm during the commission of a felony,
MCL 750.227b. The trial court sentenced defendant to serve consecutive sentences of two years’
imprisonment for the felony-firearm conviction, and two years’ probation for the heroin
conviction. Defendant appeals as of right. We affirm. This appeal has been decided without
oral argument pursuant to MCR 7.214(E).
The trial court concluded that defendant had possessed eight packets of heroin, while also
in possession of a firearm. The court stated, “The firearm does not have any nexus or
relationship to the other crime other than it was simply carried at the time he possessed the
drugs.” Defendant’s sole issue on appeal is whether his conviction of felony-firearm violated his
right to bear arms as guaranteed by the state and federal constitutions.
This Court reviews constitutional questions de novo. People v Conat, 238 Mich App
134, 144; 605 NW2d 49 (1999). However, defendant did not raise this issue at trial, leaving it
unpreserved. A defendant asserting an unpreserved claim of error must show a plain error that
affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). The
reviewing court should reverse only when the defendant is actually innocent or the error
seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id.
Defendant has not met this burden.
According to the Michigan Constitution, “[e]very person has a right to keep and bear
arms for the defense of himself and the state.” Const 1963, art 1, § 6. However, that a right is
constitutionally guaranteed does not mean that a citizen can never forfeit that right, or that the
right cannot be subjected to reasonable regulation. See People v Swint, 225 Mich App 353, 374375; 572 NW2d 666 (1997). Accordingly, “A right to bear arms does not encompass the
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possession of a firearm during the commission of a felony.” People v Graham, 125 Mich App
168, 172-173; 335 NW2d 658 (1983).
“A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” US Const, Am II. The United States
Supreme Court has recently determined that the Second Amendment guarantees a personal right
to firearms for purposes of self-defense, and as a check against tyranny. District of Columbia v
Heller, ___ US ___; 128 S Ct 2783, 2801-2802, 2821-2822; 171 L Ed 2d 637 (2008). However,
it also held that the right to bear arms was not without limitation, and advised that “prohibitions
on the possession of firearms by felons” remained presumptively valid. Id. at 2816-2817.
Because neither the state nor federal constitutional right to bear arms extends to doing so
in connection with felonious conduct, we reject defendant’s constitutional challenges.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
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