{ "id": 2669068, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WOODWORTH, Defendant-Appellant", "name_abbreviation": "People v. Woodworth", "decision_date": "1989-08-15", "docket_number": "No. 5\u201487\u20140820", "first_page": "44", "last_page": "47", "citations": [ { "type": "official", "cite": "187 Ill. App. 3d 44" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "859 F.2d 629", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530317 ], "opinion_index": 0, "case_paths": [ "/f2d/859/0629-01" ] }, { "cite": "245 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 2d 228", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598875 ], "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/105/0228-01" ] }, { "cite": "516 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "942" } ], "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. 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DAVID WOODWORTH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RARICK\ndelivered the opinion of the court:\nDefendant, David Woodworth, appeals from the denial by the circuit court of Union County of his motion to withdraw his guilty plea. We affirm.\nIn January of 1987, defendant was charged by information with a weapons offense. The information alleged defendant, who had previously been imprisoned for a felony, knowingly possessed a .22 caliber revolver. The caption alleged the charge was a Class 3 felony, \u201cunlawful use of a firearm by a felon,\u201d while the body of the charge, according to defendant\u2019s current viewpoint, alleged a misdemeanor version of the offense.\nThe testimony from defendant\u2019s preliminary hearing revealed that the police officer who arrested defendant stopped defendant because he was driving erratically. Once defendant stumbled out of his car, the officer noticed the butt of a handgun sticking out from under the driver\u2019s seat. Defendant later admitted to the police he knew his possession of a firearm was illegal.\nIn April, defendant pleaded guilty to the felony weapons charge. At the outset of the hearing the trial court asked: \u201cWhat is this matter coming on today for, gentlemen?\u201d Defense counsel replied: \u201cA plea, Your Honor. Mr. Woodworth will plead guilty to unlawful use of weapon by a felon.\u201d The trial court then stated: \u201cThat is a class three felony and provides for a determinative sentence of not less than two nor more than five years.\u201d Defense counsel responded the court was correct. The trial court subsequently accepted defendant\u2019s plea and set the matter for sentencing. At defendant\u2019s sentencing hearing, however, defense counsel alerted the trial court an error had been made and urged sentencing for the misdemeanor offense as charged in the body of the information. The trial court ultimately held that because defendant believed he was pleading guilty to a Class 3 felony, he would be sentenced accordingly. Defendant was sentenced to a two-year term of probation with home confinement. Defendant\u2019s motion to withdraw his guilty plea, as being not knowingly, intelligently and voluntarily given, was denied.\nDefendant argues on appeal the trial court erred in sentencing him for a Class 3 felony when in fact the charge was in the language of and cited to the misdemeanor offense. Defendant contends because the body of the charging instrument controls (see People v. Sirinsky (1970), 47 Ill. 2d 183, 187, 265 N.E.2d 505, 507), he only had notice of the misdemeanor offense. He therefore only could plead guilty to the misdemeanor offense even though he believed he was pleading guilty to the felony offense. We disagree.\nPrior to January 1, 1988, the date for repeal of section 24\u2014 3.1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 3.1(a)(3)) (the misdemeanor offense), the act of a convicted felon\u2019s possession of a firearm could be prosecuted as either a felony under the unlawful use or possession of weapons by felons statute (Ill. Rev. Stat. 1987, ch. 38, par. 24 \u2014 1.1(a)) or a misdemeanor under the unlawful possession of firearms and firearm ammunition statute (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 3.1(a)(3)). Both offenses consisted of the same two elements: possession of a firearm and the possessor being a convicted felon. It was up to the prosecutor in the exercise of his discretion to choose which offense to charge. (See People v. McCollough (1974), 57 Ill. 2d 440, 444-45, 313 N.E.2d 462, 465.) Defendant believes, however, the felony offense has an additional element: \u201con or about his person.\u201d This element, which the body of the information failed to include, requires that the felon, according to defendant, actually possess the firearm on or about his person. Here the factual basis only revealed defendant had the gun on the floor of his car. Defendant therefore argues he could not have pleaded guilty to the felony offense under any circumstance. In this context, however, \u201cpossessing on or about one\u2019s person\u201d is no different than \u201chaving in one\u2019s possession\u201d or simply \u201cpossessing.\u201d (See People v. Rangel (1987), 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 942.) The key is within one\u2019s reach. Clearly the firearm on the floor of his car under his seat was within defendant\u2019s reach. \u201cOn or about his person\u201d is not the distinguishing element defendant wishes it to be.\nA factor in support of the State\u2019s position, however, is that the body of the information did include the word \u201cknowingly.\u201d While it may be true any possession must be knowing, the specific use of this word in the body of the information more closely tracks the language of the felony statute. Furthermore, any mistake with regard to any statutory citation would amount to merely a formal defect which the State could amend at any time. See People v. Hampton (1969), 105 Ill. App. 2d 228, 230, 245 N.E.2d 47, 47.\nPutting aside all of the technical language arguments, the most important point here is the fact that defendant believed and understood he was pleading guilty to a felony. Everyone \u2014 defendant, defense counsel, the State, and the trial court \u2014 operated under the assumption defendant was charged with and was pleading guilty to a felony. Defendant was admonished the charge was a felony. He was advised of possible penalties in connection with the felony offense. And, he was represented by able counsel throughout, counsel who also believed defendant was charged with a felony. Defendant cannot claim he had no notice of pleading otherwise. Defendant clearly was charged with and pleaded guilty to the felony offense. Cf. United States v. Partida-Parra (9th Cir. 1988), 859 F.2d 629.\nFor the aforementioned reasons, we affirm the denial by the circuit court of Union County of defendant\u2019s motion to withdraw his guilty plea.\nAffirmed.\nGOLDENHERSH and HOWERTON, JJ., concur.", "type": "majority", "author": "JUSTICE RARICK" } ], "attorneys": [ "Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "H. Wesley Wilkins, State\u2019s Attorney, of Jonesboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WOODWORTH, Defendant-Appellant.\nFifth District\nNo. 5\u201487\u20140820\nOpinion filed August 15, 1989.\nDaniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nH. Wesley Wilkins, State\u2019s Attorney, of Jonesboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0044-01", "first_page_order": 70, "last_page_order": 73 }