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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DAVID LEONARD SCHWARTZ, Defendant-Appellant.

UNPUBLISHED October 21, 2010

No. 291313 Delta Circuit Court LC No. 08-007945-FH

Before: MURPHY, C.J., and BECKERING and M. J. KELLY, JJ. PER CURIAM. Defendant David Leonard Schwartz appeals as of right his bench conviction of possessing a firearm while being ineligible to do so (felon-in-possession). See MCL 750.224f. The trial court sentenced Schwartz to serve five months in jail for his conviction. On appeal, Schwartz argues that his conviction violated his constitutional right to bear arms and violates the constitutional prohibition against the passage of ex post facto laws. For these reasons, he maintains that this Court must reverse and vacate his felon-in-possession conviction. Because we conclude that his conviction did not violate either his constitutional right to bear arms or the prohibition against ex post facto laws, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY The present case has its origins in a violent altercation between Schwartz and a friend, Ian Goldi, at Schwartz's home. Police reports contained in the lower court record indicate that prior to the altercation Schwartz and Goldi had been drinking and smoking marijuana. 1 Later, Schwartz drove Goldi to the home of someone that neither Schwartz nor Goldi would identify. Goldi indicated that he had a discussion with that person about a drug debt that he owed to that person and that Schwartz seemed upset about it. They later went to Schwartz's home. Goldi related that they drank some more at Schwartz's house and, at some point, Schwartz retrieved a

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The police reports were not admitted at Schwartz's bench trial. Nevertheless, we have elected to use them solely to provide some limited background to the events that led to the present charge.

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gun and fired a shot at him. He said they then began to struggle over the gun, which went off two more times. He said he took the gun and swung it like a baseball bat and struck Schwartz. According to Goldi, Schwartz then grabbed a knife and tried to cut his head off. As reported by the police, Schwartz stated that Goldi was drunk and, after they arrived at Schwartz's house, Goldi began to punch him. Schwartz said he grabbed his rifle and ordered Goldi to leave, but Goldi obtained control of the gun and made him get on his knees in the kitchen and threatened to kill him. Schwartz said he took a filet knife and slashed Goldi. Goldi then took the knife from him and stabbed him in the side. Schwartz said he then went next door to his parent's house and called the police. The records show that both Schwartz and Goldi had stab wounds that required emergency medical care. Photos from the scene also show significant amounts of blood on the floor and wall. After conducting an investigation into the incident, it was learned that Schwartz had been charged in 1992 with delivering marijuana in violation of MCL 333.7401. In April of that same year, Schwartz pleaded guilty to attempting to deliver marijuana, which was then considered a high misdemeanor. See MCL 750.92. In April 2008, the prosecutor charged Schwartz with felon-in-possession on the basis of the evidence that he possessed a 30-30 caliber rifle during the altercation with Goldi. In September 2008, Schwartz's trial counsel moved to dismiss the charge on the ground that the Legislature could not retroactively elevate a misdemeanor to a felony. At oral arguments on the motion, his trial counsel also argued that, because Schwartz pleaded guilty to attempted delivery of marijuana several months before the Legislature enacted MCL 750.224f, it could not be applied to him without violating the prohibition against ex post facto laws. The trial court rejected that argument and denied the motion to dismiss. The case then proceeded to a bench trial in February 2009. At Schwartz's trial, Trooper Scott White testified that he worked for the Michigan State Police and that he responded to a call at Schwartz's parent's house. Schwartz was there along with Goldi and both Schwartz and Goldi were injured. After he and his partner began to administer first aid, Schwartz told him that their injuries occurred in an altercation next door at his house. White said that he got Schwartz's permission to search his house and found a 30-30 rifle that had been broken into two pieces. Schwartz told White that he and Goldi initially fought over a knife and then over the gun. Schwartz said that he went to his bedroom to retrieve his cell phone and Goldi followed him. The gun was lying on the bed and they began to fight over it. However, White said that Schwartz's story changed and, in an alternate version, he said he went to the bedroom to get his rifle to get Goldi out of the house. The register of deeds for Delta County testified that she keeps the records of felony convictions and the records for persons who have their gun privileges reinstated. She produced a copy of Schwartz's 1992 conviction of attempting to deliver marijuana and stated that she had no record that he had ever applied to have his gun privileged reinstated.

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Schwartz testified that he pleaded guilty to the misdemeanor of attempting to deliver marijuana and that he had no idea that the Legislature subsequently enacted a law that barred him from possessing a gun. He admitted that he had owned the rifle since he was 16-years-old and that he possessed and held the rifle on the day at issue. At the close of the trial, the trial court found that the prosecution had proven beyond a reasonable doubt that Schwartz had committed the crime of being a felon-in-possession. Thereafter, the trial court sentenced Schwartz to serve 5 months in jail. This appeal followed. II. THE RIGHT TO BEAR ARMS A. STANDARDS OF REVIEW We shall first address Schwartz's claim that his conviction must be vacated because the statute criminalizing the possession of firearms by felons, MCL 750.224f, is unconstitutional as applied to him. Specifically, he argues that, under the Supreme Court of the United State's decision in District of Columbia v Heller, 554 US ___; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the Legislature cannot prohibit non-violent offenders from bearing arms in self defense. He also argues that the same result arises under the right to bear arms protected by the Michigan Constitution, because that provision is even more broadly worded than its federal counterpart. This Court reviews de novo questions of law such as whether a statute violates a constitutionally protected right. People v Bryant, 483 Mich 132, 138; 768 NW2d 65 (2008). However, because Schwartz did not properly preserve this issue before the trial court, he has forfeited this claim of error. People v Carines, 460 Mich 750, 761-762; 597 NW2d 130 (1999). This Court reviews unpreserved claims of constitutional error for plain error affecting the defendant's substantial rights. Id. at 764. B. PLAIN ERROR In order to avoid forfeiture of an unpreserved claim of error, the defendant must show that there was an error that was plain--that is, clear or obvious--and that the error affected his or her substantial rights. Id. at 763. The last requirement generally requires a showing that the error affected the outcome of the lower court proceedings. Id. Finally, even if the defendant shows that there was a plain error that affected the outcome of the lower court proceedings, reversal will only be warranted where the plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of the defendant's innocence. Id. At the time of Schwartz's offense and conviction for being a felon-in-possession, it was well-settled that the right to bear arms under Michigan's Constitution, see Const 1963, art 1,

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