People v. Boyce

                                       2015 IL 117108



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 117108)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                         ANTHONY BOYCE, Appellant.


                              Opinion filed February 20, 2015.



        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) 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,

                                             -2-
       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 “declined to adopt the section of the MPC that would


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       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.

           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-
¶ 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 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).
                                                 -5-
¶ 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 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.
                                                -6-
¶ 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
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          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.

              (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

                                                -8-
       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).

¶ 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




                                               -9-
       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 comprehensively apply. As the MPC comments observe,
           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).

                                                     - 10 -
       “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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