State v. Brian W. Cantwell

No. 00-3197-CR

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

State of Wisconsin,

Plaintiff-Respondent,

Brian W. Cantwell,

Defendant-Appellant.

APPEAL from a judgment and order of the circuit court for Dane County: Angela B. Bartell, Judge. Affirmed.

Before Dykman, P.J., Deininger and Lundsten, JJ.

¶1 PER CURIAM. Brian W. Cantwell appeals from a judgment convicting him of theft, and from an order denying postconviction relief. His original judgment of conviction contained a sentencing provision the trial court subsequently clarified. The issue is whether the clarification actually increased the original sentence, and thus violated Cantwell’s double jeopardy protections. We conclude it did not, and therefore affirm.

¶2 In December 1999 the trial court gave Cantwell a three-year probation term, and orally pronounced the following as a condition of probation:

I impose four months additional in the Dane County Jail, to commence not later than March 1st of the year 2000, and I specifically approve that service of that four months on Electronic Monitoring, assuming that you qualify and that you cooperate and follow the rules of the program, of the Alternatives to Incarceration Program.

The written judgment stated that the four-month jail term was “to be served via EMP.” The electronic monitoring program (EMP) rules contain the following notice: “Your jail time has been stayed pending the successful completion of EMP. If you violate any part of EMP, you may be sent back to the Dane County Jail and serve your full sentence.” Cantwell’s signature appears on a copy of the rules acknowledging that he received them.

¶3 Cantwell was subsequently terminated from EMP seven days short of four months, and placed in the Dane County Jail. Seven days later Cantwell moved for his release on the grounds that he had entirely served the four month term, by adding together the time on EMP and the time spent in jail. At the subsequent hearing on the motion, the trial court stated:

It is an issue in my mind as to what did I say and what did I mean about whether the electronic monitoring was the sentence basically as a condition of probation; or on the contrary, did I warn the defendant in any way if he didn’t fully complete it he would have to spend [the entire four months] in the county jail.

The matter was adjourned and at the follow-up hearing the court explained that in the original sentence the court did not intend to credit the time spent on EMP against the four-month jail term, unless the EMP term was successfully completed. The court explained that it was aware of the EMP rules and the notice provided in those rules, and intended that they be incorporated into the sentence. On appeal, Cantwell argues that the meaning of the original sentence is unambiguous, and required the court to grant him credit for the three months and three weeks spent on electronic monitoring. Therefore, in his view, the trial court’s subsequent decision increased his sentence and violated his constitutional right against double jeopardy.

¶4 The double jeopardy protections of the United States and Wisconsin Constitutions bar the trial court from re-sentencing a defendant to a harsher sentence after the defendant has acquired a legitimate expectation that the original sentence is a finality. See, e.g., State v. Willett, 2000 WI App 212 ¶¶3-6, 238 Wis. 2d 621, 681 N.W.2d 881. In this case, however, double jeopardy is not implicated because the trial court’s oral and written pronouncements were ambiguous and Cantwell did not acquire a legitimate expectation of his interpretation of the judge’s pronouncement. One could reasonably construe the trial court’s remarks to require completion of four months on electronic monitoring before any credit accrued, in accord with the EMP rules and requirements. Likewise, the judgment of conviction, because it specifically refers to the EMP program, can also be reasonably read to incorporate EMP requirements and rules. Because the sentence was ambiguous, the trial court was entitled to clarify the ambiguity by explaining its intent. See State v. Coles, 208 Wis. 2d 328, 333, 559 N.W.2d 599 (Ct. App. 1997) (court of appeals will look to the intent of the trial court to determine terms of sentence).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).