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.
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(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, 
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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.”
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¶ 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).
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¶ 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. 
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¶ 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 
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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 
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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). 
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“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.