                               Illinois Official Reports

                                       Supreme Court



                                People v. Boyce, 2015 IL 117108




Caption in Supreme       THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:                   ANTHONY BOYCE, Appellant.



Docket No.               117108



Filed                    February 20, 2015



Held                       A claim that the offense of attempted solicitation of murder does not
(Note: This syllabus exist in Illinois was rejected in the case of an inmate who requested a
constitutes no part of the murder by writing letters which never reached the addressee after they
opinion of the court but were placed in the prison mail system and intercepted by prison
has been prepared by the officials—criminal intent established and general attempt statute
Reporter of Decisions applicable.
for the convenience of
the reader.)




Decision Under           Appeal from the Appellate Court for the First District; heard in that
Review                   court on appeal from the Circuit Court of Cook County, the Hon.
                         James B. Linn, Judge, presiding.




Judgment                 Affirmed.
     Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
     Appeal                   Deputy Defender, and Philip D. Payne, Assistant Appellate Defender,
                              of the Office of the State Appellate Defender, of Chicago, for
                              appellant.

                              Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                              State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
                              Annette Collins and Douglas P. Harvath, Assistant State’s Attorneys,
                              of counsel), for the People.



     Justices                 JUSTICE KARMEIER delivered the judgment of the court, with
                              opinion.
                              Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
                              and Theis concurred in the judgment and opinion.



                                               OPINION

¶1          Defendant, Anthony Boyce, was convicted in the circuit court of Cook County of
       attempted solicitation of murder. In this appeal, he contends that offense does not exist in
       Illinois. We reject that argument, and we now affirm the judgment of the appellate court. 2013
       IL App (1st) 102318-U.

¶2                                      STATUTES INVOLVED
¶3         Section 8-1.1 of the Criminal Code of 1961 (720 ILCS 5/8-1.1 (West 2008)) provides in
       pertinent part:
              “Solicitation of Murder. (a) A person commits solicitation of murder when, with the
              intent that the offense of first degree murder be committed, he commands, encourages
              or requests another to commit that offense.
                  (b) Penalty. Solicitation of murder is a Class X felony and a person convicted of
              solicitation of murder shall be sentenced to a term of imprisonment for a period of not
              less than 15 years and not more than 30 years ***.”
¶4         Section 8-4 of the Criminal Code (720 ILCS 5/8-4 (West 2008)) provides:
              “Attempt.
                  (a) Elements of the Offense.
                  A person commits an attempt when, with intent to commit a specific offense, he
              does any act which constitutes a substantial step toward the commission of that offense.
                                                    ***
                  (c) Sentence.
                                                    ***


                                                  -2-
                     (2) the sentence for attempt to commit a Class X felony is the sentence for a
                  Class 1 felony[.]”

¶5                                            BACKGROUND
¶6          Defendant, who was serving a sentence of natural life in prison for a prior murder, mailed a
       series of letters that were intercepted and opened by prison officials. Based on the contents of
       the letters, defendant was charged with one count of solicitation of murder and one count of
       attempt solicitation of murder.
¶7          The State charged defendant with solicitation and attempt solicitation on a “request”
       theory. In the first count of the indictment, it was alleged that defendant, “with the intent that
       the offense of First Degree Murder be committed, to wit: that an unidentified drug addict be
       killed, *** requested that Xavier Tripp commit the offense of First Degree Murder of the
       unidentified drug addict” in violation of section 8-1.1(a) of the Criminal Code. In the second
       count, the State alleged that defendant, “with the intent that the offense of First Degree Murder
       be committed, to wit: that an unidentified drug addict be killed, *** mailed a request to Xavier
       Tripp, requesting that Xavier Tripp commit the offense of First Degree Murder of the
       unidentified drug addict” in violation of section 8-4(a) of the Criminal Code.
¶8          Subsequently, defendant filed a motion to dismiss count I of the indictment. In that motion,
       defendant argued “to be found guilty of the crime of solicitation, the defendant must have
       actually communicated to the person allegedly solicited. *** A command, encouragement, or
       request cannot be made if no one is there to receive it. Thus, an incomplete communication—a
       message that was never received by its intended recipient—cannot be a solicitation.”
¶9          Defendant observed that there was no Illinois case law on point; however, he noted that
       other jurisdictions had considered the issue and had “concluded that solicitation requires a
       completed communication.” Defendant cited State v. Andujar, 899 A.2d 1209, 1219 (R.I.
       2006) (recognizing that “defendant’s conduct was culpable enough to warrant prosecution,”
       but the “proper vehicle” would be a charge of attempted solicitation, rather than solicitation);
       People v. Saephanh, 94 Cal. Rptr. 2d 910, 915-17 (Cal. Ct. App. 2000) (holding that
       “solicitation requires a completed communication,” but rejecting defendant’s contention that
       “he is guilty of no crime,” finding that “[a]ttempted solicitation of murder is a crime in
       California”); State v. Lee, 804 P.2d 1208, 1210-11 (Or. Ct. App. 1991) (concluding “that a
       completed communication is required to prove the crime of solicitation” but finding no new
       trial was required “[b]ecause the trial court found defendant guilty of acts constituting
       attempted solicitation”); State v. Cotton, 790 P.2d 1050, 1052-55 (N.M. Ct. App. 1990)
       (holding that a completed communication is required for a solicitation conviction, but
       suggesting that the solicitor may be prosecuted for an attempt to solicit).
¶ 10        Defendant contended: “The same reasoning should apply here. As in Saephanh and
       Andujar, the plain language of the Illinois statute requires that a communication be received in
       order to complete the offense of solicitation.” Defendant also observed that the appellate courts
       in Lee (Oregon) and Cotton (New Mexico) had “noted that their penal codes, although partially
       adopting the Model Penal Code (MPC) definition of solicitation,” had “specifically omitted the
       section of the MPC definition that would criminalize uncommunicated solicitation[,]” and
       defendant suggested that, though Illinois had “substantially adopted its solicitation statute
       from the MPC, including the ‘commands, encourages, or requests’ language,” Illinois had


                                                   -3-
       “declined to adopt the section of the MPC that would proscribe uncommunicated
       solicitation[,]” thus demonstrating that “the statute does in fact require a completed solicitation
       for the offense of solicitation.”
¶ 11       Defendant concluded that “the charge of Solicitation of Murder should be dismissed” and
       the “charge of Attempt to Solicitation should be the subject of a trial.” He admitted that he
       wrote and sent the letters; he disputed only “that the content of the letters constitutes an
       attempted solicitation.” The State chose to nol-pros the solicitation charge and proceed on the
       attempt charge alone.1
¶ 12       Defendant then filed a “trial memorandum of law with respect to the charge of attempt
       solicitation of murder. In that memorandum, defendant argued, inter alia:
                “This crime is an impermissible stacking of double inchoate crimes. Convictions of this
                crime and other double inchoate crimes have been invalidated and reversed in
                numerous federal and state courts. Moreover, the crime of attempt solicitation of
                murder is a frustration of the legislature’s intent. A careful analysis of the statutes
                shows that the legislature never intended for such an attempt solicitation to be an
                offense. Furthermore, the crime of attempt solicitation of murder is logically absurd.
                Finally, the attempt statute is void for vagueness as applied because it combines the
                elements of three crimes and does not offer a person of ordinary intelligence a
                reasonable opportunity to know what activity is prohibited.”
       The parties proceeded to a bench trial on the attempt charge, and defendant was found guilty.
       In his posttrial motion, defendant reiterated some of the points raised in his trial memorandum,
       concluding that “the crime of Attempt Solicitation of Murder does not exist.” The circuit court
       denied the motion, and defendant appealed.
¶ 13       The appellate court affirmed defendant’s conviction for attempted solicitation of murder,
       concluding “that defendant was not convicted of a non-existent offense.” 2013 IL App (1st)
       102318-U, ¶ 40. In so holding, the appellate court reasoned that the lack of specific attempt
       language within the statutory definitions of solicitation and solicitation of murder is indicative
       of the legislature’s intent for the general attempt statute to apply to the offense of solicitation of
       murder. 2013 IL App (1st) 102318-U, ¶ 40.

¶ 14                                            ANALYSIS
¶ 15       Our primary objective in construing a statutory scheme is to ascertain and give effect to the
       intent of the legislature. The most reliable indicator of legislative intent is the language of the
       statute, given its plain and ordinary meaning. People v. Hunter, 2013 IL 114100, ¶ 13. In the
       event there is ambiguity, the rule of lenity requires that it be resolved in a manner that favors
       the defendant; however, “this rule must not be stretched so far as to defeat the legislature’s
       intent.” People v. Jones, 223 Ill. 2d 569, 581 (2006). In the course of statutory construction, we
       may consider the reason for the law, the problems sought to be remedied, the purposes to be
       achieved, and the consequences of construing the statute one way or another. We presume that


           1
            The State’s action appears to reflect its position in this appeal. In this appeal, the State asserts: “By
       its plain language, Illinois’s solicitation of murder statute expressly requires that the words of
       solicitation successfully be communicated for the offense to be complete.”

                                                         -4-
       the legislature did not intend to create absurd, inconvenient, or unjust results. Hunter, 2013 IL
       114100, ¶ 13; People v. Jackson, 2011 IL 110615, ¶ 12.
¶ 16        As noted, section 8-1.1(a) of the Criminal Code (720 ILCS 5/8-1.1(a) (West 2008))
       provides that “[a] person commits solicitation of murder when, with the intent that the offense
       of first degree murder be committed, he commands, encourages or requests another to commit
       that offense.” Solicitation of murder is a Class X felony. 720 ILCS 5/8-1.1(b) (West 2008).
       Although the standard period of incarceration for a Class X felony is 6 to 30 years (730 ILCS
       5/5-4.5-25(a) (West 2008)), the legislature has mandated that a person convicted of solicitation
       of murder is subject to a higher minimum of 15 years in prison. 720 ILCS 5/8-1.1(b) (West
       2008).
¶ 17        “A person commits an attempt when, with intent to commit a specific offense, he does any
       act that constitutes a substantial step toward the commission of that offense.” 720 ILCS
       5/8-4(a) (West 2008). “[T]he general attempt provision is ordinarily applicable to all
       offenses,” however, “[w]here application of the attempt provision to a principal offense creates
       an inherent impossibility, the offense cannot exist.” People v. Morgan, 203 Ill. 2d 470, 476
       (2003), overruled on other grounds by People v. Sharpe, 216 Ill. 2d 481, 516-21 (2005).
       Moreover, the appellate court has held (see People v. Harding, 401 Ill. App. 3d 482 (2010)),
       and we agree, that the general attempt statute is inapplicable where the legislature intends that
       the more specific crime subsume an attempt, “and that such legislative intent is shown by the
       inclusion of explicit ‘attempt’ language in the definition of the specific offense.” Harding, 401
       Ill. App. 3d at 487 (because “attempt” language was included in the child abduction statute, the
       court concluded the legislature meant to preclude application of the general attempt statute to
       defendant’s actions).
¶ 18        We begin with an examination of the plain language of section 8-1.1(a), which provides
       that the offense of solicitation of murder is committed “when, with the intent that the offense of
       first degree murder be committed, he commands, encourages or requests another to commit
       that offense.” 720 ILCS 5/8-1.1(a) (West 2008). In this case, defendant’s intent is not in
       dispute, so the next point of analysis—before we consider whether attempted solicitation of
       murder is an offense in Illinois, and whether defendant committed it—is to ascertain what
       conduct is necessary to commit the principal offense of solicitation.
¶ 19        Our solicitation statutes state that a person commits solicitation when he “commands,
       encourages or requests another” to commit the principal offense. Legislative intent is easily
       discerned, from the plain meaning of the statutory phraseology, when solicitor and solicitee are
       communicating verbally in real time; however, the intent of the legislature is not so clearly
       expressed when applied to letters that do not reach the intended recipient.
¶ 20        On the one hand, it is reasonable to argue that defendant, by posting the letters for delivery
       in the prison mail, did all he could do, within the written medium and the means available to
       him for transmission, to “request” that another person commit murder, which is what is
       seemingly required under the terms of section 8-1.1(a) of the Criminal Code (720 ILCS
       5/8-1.1(a) (West 2008)) to commit solicitation of murder. Defendant’s criminal intent is
       established whether or not the letters reach the intended recipient. The danger presented by
       defendant’s conduct is the same, whether or not the letters are fortuitously intercepted.
¶ 21        On the other hand, one could also reasonably argue that defendant has not requested that
       another commit murder where the letters of solicitation never reach the intended recipient. In


                                                    -5-
       other words, defendant has made a request, but it is not a request of another, unless it reaches
       the other. Much as a defendant who fires a shot intending to kill another does not commit
       murder unless the bullet fatally strikes the intended target, a defendant who intends to solicit
       the commission of an offense, and dispatches a letter for that purpose, is not guilty of the
       completed offense of solicitation unless the letter reaches the intended recipient and conveys
       the inducing criminal request. As evinced by the cases defendant cited in the circuit court in
       support of his motion to dismiss the solicitation charge, that view is far and away the prevailing
       view among those jurisdictions that have considered this issue, though there are some minor
       features in those statutes that arguably distinguish them from our own.
¶ 22       We consider whether a statute is ambiguous in the context of the facts of the case before us.
       See People v. Hicks, 164 Ill. 2d 218, 223 (1995) (finding “no ambiguity *** in the
       extended-term sentencing provision as applied to the facts of the case presently before us”);
       People v. Fabing, 143 Ill. 2d 48, 58 (1991) (concluding that “defendant may properly be
       convicted under the Act, even though there exists some ambiguity as to whether the Act may
       be properly applied under a different set of facts”); People v. Salley, 373 Ill. App. 3d 106,
       111-12 (2007) (distinguishing another appellate decision that found the statute “ ‘ambiguous’
       only in the context of the facts of that case”). The language of a statute is ambiguous if it is
       susceptible to more than one reasonable interpretation. People ex rel. Department of Public
       Aid v. Smith, 212 Ill. 2d 389, 397 (2004). We conclude Illinois’s solicitation statutes are
       ambiguous when applied to the facts of this case. Where a statute is ambiguous, “we must go
       beyond the statute itself and resort to extrinsic aids of statutory construction to determine the
       legislature’s intent, which include consideration of the statute’s purpose, necessity for the law
       and policy concerns that led to its passage.” Ranjha v. BJBP Properties, Inc., 2013 IL App
       (1st) 122155, ¶ 10 (citing People v. Collins, 214 Ill. 2d 206, 214 (2005)).
¶ 23       In that endeavor, we turn, first, to the committee comments to the Criminal Code of 1961.
       Although the committee comments to section 8-1 provide no interpretational guidance with
       respect to the facts of this case, the concluding paragraph of the comments to “Title III.
       Specific Offenses, Part A. Inchoate Offenses” provides at least some direction:
                   “In view of the comprehensive and exhaustive review of the law on all three
               [inchoate] offenses in Model Penal Code comments and appendices ***, no attempt
               will be made here to discuss in detail the many questions involved, and how they are
               treated in the statutes and case law of the various jurisdictions. The Model Penal Code
               adequately supplies such detailed discussion.” 720 ILCS Ann. 5/art. 8, Committee
               Comments—1961, at 577 (Smith-Hurd 2002).
       Obviously, the drafters of Illinois’s solicitation statute were aware of the treatment of that
       offense in the MPC. We look, then, to that section of the MPC.
¶ 24       Section 5.02 of the MPC (Model Penal Code § 5.02 (1985)) defines criminal solicitation as
       follows:
                   “(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime
               if with the purpose of promoting or facilitating its commission he commands,
               encourages or requests another person to engage in specific conduct that would
               constitute such crime or an attempt to commit such crime or would establish his
               complicity in its commission or attempted commission.



                                                   -6-
                    (2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this
                Section that the actor fails to communicate with the person he solicits to commit a
                crime if his conduct was designed to effect such communication.”
       As defendant observed in his motion to dismiss count I of the indictment, though the General
       Assembly “substantially adopted [the] solicitation statute from the MPC, including the
       ‘commands, encourages, or requests’ language,” it “declined to adopt the section of the MPC
       that would proscribe uncommunicated solicitation.” Like the courts in Lee and Cotton (Lee,
       804 P.2d at 1210; Cotton, 790 P.2d at 1052-55) we ascribe significance to that omission. We
       believe it signals legislative intent that uncommunicated solicitations are not to be treated as
       completed solicitations. Thus, we conclude, where a letter is employed as the means of
       solicitation, the letter must actually reach the intended recipient for the crime of solicitation to
       be complete. That result, we observe, is in accord with the overwhelming weight of authority
       from other jurisdictions, as expressed in Andujar, Saephanh, Lee and Cotton.
¶ 25       However, we reject defendant’s contentions that he is guilty of nothing, and that the crime
       of attempted solicitation does not exist in Illinois. Initially, we disagree with defendant’s
       assertion that the crime of attempted solicitation is logically absurd. The well-reasoned
       analyses of the courts in Andujar, Saephanh, Lee and Cotton refute that claim. Though all held
       that letters soliciting the crimes in question had to reach and be read by the intended recipients
       for the crime of solicitation to be complete, they nonetheless all determined that convictions
       for attempted solicitation would be proper where the letters were sent by defendants, but were
       not received by the addressees. Andujar, 899 A.2d at 1219; Saephanh, 94 Cal. Rptr. 2d at
       915-17; Lee, 804 P.2d at 1210-11; Cotton, 790 P.2d at 1052-55. See also People v. Bloom, 133
       N.Y.S. 708, 710-11 (1912) (employing an analysis suggesting that the foregoing outcome has
       been prevalent for more than a century).
¶ 26       Commentators agree that a charge of attempt would be reasonable and proper in this
       circumstance. Although the drafters of the MPC chose to incorporate an attempt to solicit in
       the substantive charge of solicitation itself, they nonetheless recognized that a charge for
       attempted solicitation would, logically, stand on its own in a separate prosecution and that
       public policy considerations warranted criminal responsibility in either case. The MPC
       comments observe:
                “Where, under the law existing prior to the drafting of this section of the Model Penal
                Code, it was criminal to solicit another to commit a crime, liability attached even
                though the communication failed to reach the party intended to be solicited, although
                generally in the latter instance the solicitor had to be prosecuted for an attempt to
                solicit. Under Subsection (2), conduct ‘designed to effect’ communication of the
                culpable message is sufficient to constitute criminal solicitation and there is therefore
                no need for a crime of attempted solicitation.
                    *** The crucial manifestation of dangerousness lies in the endeavor to
                communicate the incriminating message to another person, it being wholly fortuitous
                whether the message was actually received. Liability should attach, therefore, even
                though the message is not received by the contemplated recipient ***.” Model Penal
                Code and Commentaries (Official Draft and Revised Comments) § 5.02, at 380-81
                (1985).



                                                    -7-
¶ 27       In his treatise, Professor Wayne LaFave also rejects the notion that a defendant, in this
       situation, should be guilty of nothing:
                    “What if the solicitor’s message never reaches the person intended to be solicitated,
                as where an intermediary fails to pass on the communication or the solicitor’s letter is
                intercepted before it reaches the addressee? The act is nonetheless criminal, although it
                may be that the solicitor must be prosecuted for an attempt to solicit on such facts.
                Liability properly attaches under these circumstances, as the solicitor has manifested
                his dangerousness and should not escape punishment because of a fortuitous event
                beyond his control.” 2 Wayne R. LaFave, Substantive Criminal Law § 11.1(c), at 198
                (2d ed. 2003).
       LaFave notes that various state solicitation statutes explicitly subsume attempted solicitation
       within the substantive offense of solicitation by including “attempt” language within the
       definition of the principal offense. See 2 Wayne R. LaFave, Substantive Criminal Law
       § 11.1(c), at 198 n.93 (2d ed. 2003) (citing statutes in Delaware, Georgia, New York, Iowa,
       North Dakota, Virginia, Maine, Texas, New Mexico, and Tennessee).2
¶ 28       Our solicitation statute does not contain “attempt” language. However, what that means is
       that we assume our general attempt provision is applicable, absent inherent impossibility.
       Morgan, 203 Ill. 2d at 476. There is no inherent impossibility here. Our discussion heretofore
       demonstrates that courts and commentators alike have recognized the logic of holding a
       defendant criminally responsible, either via the principal, substantive offense of solicitation, or
       by means of attempt provisions, for solicitation that, by reason of mere fortuity, does not reach
       the intended recipient. Such a construction of our statutes, as they relate to criminal
       solicitation, is neither “illogically absurd,” nor does it result in “impermissible stacking of
       double inchoate crimes,” as defendant contends.
¶ 29       Defendant contends, inter alia, that the mere placement of statutes defining attempt and
       solicitation in a common section entitled “Inchoate Offenses,” is sufficient to signal legislative
       intent that there be no offense of attempted solicitation of murder. Moreover, choosing to
       characterize solicitation as equivalent to attempt, he advances the contention that there can be
       no “attempt to attempt.”
¶ 30       With respect to the former contention, we find the umbrella categorization of both
       solicitation and attempt in “Part A. Inchoate Offenses” insufficient to bear the weight that
       defendant places on it. We note that attempt and solicitation also fall under “Title III. Specific
       Offenses.” Illinois’s attempt statute provides that “[a] person commits an attempt when, with
       intent to commit a specific offense, he does any act which constitutes a substantial step toward
       the commission of that offense.” (Emphasis added.) 720 ILCS 5/8-4(a) (West 2008).
       Solicitation of murder is a “specific offense” to which attempt should be applicable.
¶ 31       As for defendant’s second contention, it would seem obvious that there would be no need
       for a statute proscribing solicitation if the legislature meant for statutory attempt provisions to
           2
             One example of a statute’s incorporation of attempt language can be found in section 102(h) of the
       Illinois Controlled Substances Act, where “delivery” is defined as “the actual, constructive or
       attempted transfer of possession of a controlled substance.” (Emphasis added.) 720 ILCS 570/102(h)
       (West 2008). A second example can be found in Illinois’s child abduction statute, where the offense is
       committed when, in pertinent part, the defendant “lures or attempts to lure a child.” (Emphasis added.)
       720 ILCS 5/10-5(b)(10) (West 2008).

                                                      -8-
       comprehensively apply. As the MPC comments observe, “each of the two inchoate offenses
       presents problems not pertinent to the other.” Model Penal Code and Commentaries (Official
       Draft and Revised Comments) § 5.02, at 372-73 (1985). See also Cotton, 790 P.2d at 1055
       (“The offenses of solicitation and attempt are analytically distinct in their elements because
       solicitation unlike attempt, is in the nature of preparation to commit an offense, rather than an
       act or acts in furtherance of the offense attempted.”). Of course, if the solicitation statute were
       construed as subsuming uncommunicated solicitation, or revised to that effect, there would be
       no suggestion of an “attempt to attempt”—the conduct would simply be solicitation, regardless
       of the fortuity of interception.
¶ 32       We acknowledge defendant’s argument that our recognition of an offense of attempted
       solicitation, generally, may cause sentencing uncertainty in other contexts, and his suggestion
       that this indicates the legislature did not intend to create that offense. Specifically, defendant
       points to the penalty provision of the general solicitation statute (720 ILCS 5/8-1(b) (West
       2008)), which cross-references subsection (c) of section 8-4 of the Criminal Code for purposes
       of sentencing (720 ILCS 5/8-4(c) (West 2008)). Defendant concedes that there is no problem
       in this case as the statute defining the offense of solicitation of murder identifies that offense as
       a Class X felony (720 ILCS 5/8-1.1(b) (West 2008)), which would, by application of the
       Criminal Code’s attempt provision (720 ILCS 5/8-4(a) (West 2008)), and the penalty
       provisions therein (720 ILCS 5/8-4(c) (West 2008)), result in a clearly defined Class 1 felony
       and sentence for attempted solicitation of murder. There is no uncertainty here. Any sentencing
       issues pertinent to offenses not presently before this court will have to wait for another day.

¶ 33                                        CONCLUSION
¶ 34       In sum, we believe the legislature did not intend that a defendant, in these circumstances,
       escape criminal liability simply because the prison authorities were vigilant enough to
       intercept his letters before they reached the intended recipient. Neither Illinois’s statutory
       scheme nor case law requires that result. Defendant was properly convicted of attempted
       solicitation of murder.
¶ 35       For the foregoing reasons, we affirm the judgment of the appellate court.

¶ 36       Affirmed.




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