People v. Boyce

27 N.E.3d 77

The PEOPLE of the State of Illinois, Appellee

v.Anthony BOYCE, Appellant.

No. 117108.

Supreme Court of Illinois.

Feb. 20, 2015.

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

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

OPINION

Justice KARMEIER delivered the judgment of the court, with 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, 2013 WL 6237468.

¶ 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, 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, 80 Cal.App.4th 451, 94 Cal.Rptr.2d 910, 915–17 (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, 105 Or.App. 329, 804 P.2d 1208, 1210–11 (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, 109 N.M. 769, 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 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, 2013 WL 6237468. 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, 2013 WL 6237468.

¶ 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, 369 Ill.Dec. 549, 986 N.E.2d 1185. 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, 308 Ill.Dec. 402, 861 N.E.2d 967 (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, 369 Ill.Dec. 549, 986 N.E.2d 1185 ; People v. Jackson, 2011 IL 110615, ¶ 12, 353 Ill.Dec. 353, 955 N.E.2d 1164.

¶ 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...