What is Home Invasion – 720 ILCS 5/19-6?

You can find the crime of Home Invasion in Illinois at 720 ILCS 5/19-6. It states that:

“A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in the dwelling place until he or she knows or has reason to know that one or more persons is present or who falsely represents himself or herself, including but not limited to, falsely representing himself or herself to be a representative of any unit of government or a construction, telecommunications, or utility company, for the purpose of gaining entry to the dwelling place of another when he or she knows or has reason to know that one or more persons are present and
(1) While armed with a dangerous weapon, other than a firearm, uses force or threatens the imminent use of force upon any person or persons within the dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury, except as provided in subsection (a)(5), to any person or persons within the dwelling place, or
(3) While armed with a firearm uses force or threatens the imminent use of force upon any person or persons within the dwelling place whether or not injury occurs, or
(4) Uses force or threatens the imminent use of force upon any person or persons within the dwelling place whether or not injury occurs and during the commission of the offense personally discharges a firearm, or
(5) Personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person within the dwelling place, or
(6) Commits, against any person or persons within that dwelling place, a criminal sexual assault or criminal sexual abuse.”

What Is the Definition Of “The Dwelling Place of Another”?

This definition is clear if you never lived in that home. But what if “the home you invaded” was a home that you actively pay the bills for? Well, the State can still charge you with this crime because the law states that “dwelling place of another includes a dwelling place where the defendant maintains a tenancy interest but from which the defendant has been barred by a divorce decree, judgment of dissolution of marriage, order of protection, or other court order.” 720 ILCS 5/19-6(d). Therefore, if you have an order of protection telling you to stay away, the State could charge you with home invasion despite the fact that you pay the bills.

Can I be charged with Home Invasion when the victim invited me or consented to me coming over?

This was the central issue in a recent Supreme Court case, People v. Witherspoon, 2019 IL 123092. Initially, the Appellate Court had found for the defendant, claiming that the victim’s consent to defendant’s entry trumped any court order. But, the Supreme Court expressly overturned and rejected that reasoning. In doing so, the Court said that “when a defendant’s prosecution … is premised on the violation of a court order, the consent of the [victim] is legally irrelevant. The [victim’s]consent to a defendant’s entry does not, in some sense, trump the court order.”

If my girlfriend/wife does not want to proceed with the case, the State will have to dismiss the case, right?

Wrong! Criminal cases are not civil lawsuits. In civil cases, the person suing you can always dismiss the case against you. However in criminal cases, it is “The People of the State of Illinois” v “Defendant” and not “Victim” v “Defendant.” The representative of “the People” is the prosecutor not the victim. Therefore, the State can still go forward with charges even if the victim does not want to proceed.

Even worse, if the sheriff serves the victim, and the victim fails to appear or refuses to testify, the State can obtain an arrest warrant for the victim and file a Criminal Contempt case against the victim. How bad can it get for a witness who is found guilty of criminal contempt? There’s one case out of Kankakee where a judge sentenced a witness to 20 years in the Illinois Department of Corrections for refusing to testify (later reduced on appeal to 10 years IDOC). See People v. Geiger, 2012 IL 113181.

Could I be charged with Home Invasion under 720 ILCS 5/19-6(a)(2) If I didn’t cause any physical injuries?

Yes. The term “injury” in the definition of home invasion also includes psychological or emotional trauma if that trauma was the result of some physical contact. IPI 11.53B.

Do I need a lawyer if I am charged with Home Invasion?

Yes. You should be represented by an attorney on any offense that can result in the loss of your freedom. This is a right guaranteed to you under the United States Constitution. Especially since this offense involves a mandatory prison sentence.

Is Home Invasion a misdemeanor or felony?

Home Invasion is a Class Felony. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/19-6(c).

What level of felony is Home Invasion?

Home Invasion is a class X felony. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. 720 ILCS 5/19-6(c).

Can I go to prison for a Home Invasion? What Is the Sentencing Range for Home Invasion? Are there sentencing enhancements for using a firearm?

Since Home Invasion is a Class X felony, its sentencing range is 6 to 30 years in the Illinois Department of Corrections. 730 ILCS 5/5-4.5-25(a). However, the penalties get substantially worse if you have and/or use a gun in the commission of the offense.

If you were personally armed with a firearm, then there is a 15-year gun enhancement. That means that your new sentencing range is 21 to 45 years in the Illinois Department of Corrections. But, if you discharge that firearm, then it is a 20-year enhancement. So, your sentencing range for discharging the firearm would be 26 to 50 years in the Illinois Department of Corrections. Now, if you shoot someone, then there is a 25 to life enhancement. Your new sentencing range for shooting someone is 31 years to Life in the Illinois Department of Corrections. 720 ILCS 5/19-6(c). Please note: your sentencing range could be even higher if this crime must be a consecutive sentence to other crimes that you are charged with. 730 ILCS 5/5-8-4(d)(1) makes class X felonies involving severe bodily injury mandatorily consecutive to other crimes.

Can I get Probation on a Home Invasion charge?

No. Home Invasion is a Class X Felony with a mandatory prison sentence. You cannot receive probation on a Home Invasion case.

Can I get Supervision on a Home Invasion charge?

No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).

How is Home Invasion Different from Armed Violence?

Many Home Invasions have a companion charge of Armed Violence. That’s because the facts that lead to being charged with home invasion, also fit in the charge of armed violence. One major difference between the two charges is the sentencing range. If you had a firearm, your minimum sentence for Home Invasion is 21 years while your minimum sentence for Armed Violence is 15 years. Some people choose to plea to the Armed Violence charge because it results in less time in custody.

How Much of Your Prison Sentence Do You Serve for Home Invasion Charges? – 730 ILCS 5/3-6-3

Under Illinois’ Truth-In-Sentencing Law, Home Invasion can either be an 85% sentence or a 50% sentence. Generally, Home Invasion is a 50% sentence under 730 ILCS 5/3-6-3(a)(2.1). But if 1) you committed a sex crime; 2) you cause great bodily harm; 3) you discharged a firearm; or 4) you harmed a child or senior citizen; then the Home Invasion would be an 85% sentence. 730 ILCS 5/3-6-3(a)(2)(ii-iv).

How to Keep a Home Invasion Criminal Conviction off Your Record

There are several ways to keep a Home Invasion conviction off your criminal record. Here are some of those ways:

How to Win the Home Invasion Criminal Case at Trial?

“She invited me” defense.

One of the elements that the State has to prove is that you entered without authority. Pattern jury instruction 11.53A covers this issue. It states: “The defendant’s entry into a dwelling of another is “without authority” if, at the time of entry into the dwelling, the defendant has an intent to commit a criminal act within the dwelling regardless of whether the defendant was initially invited into or received consent to enter the dwelling. However, the defendant’s entry into the dwelling is “with authority” if the defendant enters the dwelling without criminal intent and was initially invited into or received consent to enter the dwelling, regardless of what the defendant does after he enters.” See the case of People v. Bush, 157 Ill.2d 248, 253-54 (1993).

“I live here” defense.

Once again, the State has to show that your entry was without authority. If you have been staying with your girlfriend or boyfriend, then the “I live here” defense may apply. Remember: the “dwelling place of another includes a dwelling place where the defendant maintains a tenancy interest but from which the defendant has been barred by a divorce decree, judgment of dissolution of marriage, order of protection, or other court order.” 720 ILCS 5/19-6(d). So, if (1) you live there, and (2) she hasn’t gotten a court order kicking you out, then (3) your lawyer might argue this in your defense.

“Consent” defense.

If the crime the State said you committed inside the home was a sex crime, then the defense of consent applies. “Consent” means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. Similarly, the manner of dress of the victim at the time of the offense shall not constitute consent. 720 ILCS 5/11-0.1. So if you raise the Defense of Consent, the State has the burden of proving lack of consent beyond a reasonable doubt. People v. Haywood, 118 Ill. 2d 263, 274 (1987).

How to Win the Home Invasion Criminal Case at Motion?

If there were some issues with the recovery of evidence in your case, then a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of police conduct. If the Court finds that police did not follow proper procedure, then the Court can prevent the State from using what the police recovered from the improper search. This could result in a dismissal of your case.

Pro Tip: Prosecutors and police sometimes make mistakes when presenting a case to the grand jury. Some errors are fatal to the prosecution of the case if the error impacted your due process rights. Speak with your attorney about any grand jury errors.

Plea Agreement (Reduction on the Charge)

A reduction from a home invasion to a residential burglary is a very good disposition for two reasons. The first reason is that your sentencing range will be on a class 1 felony instead of a class X felony. The second reason is that you are no longer at risk of Illinois’ Three Strikes Rule. In Illinois, your third class X felony can result in a life sentence. 730 ILCS 5/5-4.5-95. Home invasions can also be plead down to Aggravated Robbery, Criminal Sexual Assault, Aggravated Discharge Of a, Unlawful Restraint, Kidnapping, Burglary or Aggravated Domestic Battery.

Other Violent Crimes Guides

If you are looking for information about:

• Aggravated Domestic Battery cases, then check out our guide to Aggravated Domestic Battery cases in Illinois.
• Criminal Sexual Assault, then check out our guide to Criminal Sexual Assault cases in Illinois.
• (Aggravated) Unlawful Use of a Weapon, then check out our guide to Unlawful Use of a Weapon cases in Illinois.
• Armed Violence, then check out our guide to Armed Violence cases in Illinois.

Hire Illinois Home Invasion Criminal Defense Lawyer Clyde Guilamo

I offer this Illinois Home Invasion guide as free legal education. #notlegaladvice. If you have specific questions about your case, call me today for a free consultation: