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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
DECEMBER 27, 1996
A party may file with the Supreme Court                                            This opinion is subject to further editing.
a petition to review an adverse decision                                           If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                         appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                Official Reports.
No.   96-1472-CR
STATE OF WISCONSIN                                                                 IN COURT OF APPEALS
                                                                                   DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
HOWARD S. HARMSTON,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for
Trempealeau County:  ROBERT W. WING, Judge.  Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ.
PER   CURIAM.    Howard   Harmston   appeals   a   judgment
convicting him of sexually assaulting his granddaughter and sentencing him to
ten years in prison consecutive to an unrelated sentence.   He also appeals an
order denying his postconviction motion to reconsider the sentence.   He argues
that the trial court failed to comply with § 793.012, STATS., because it gave no
consideration to the sentencing guidelines and did not state its reasons for




No.   96-1472-CR
deviating from them and that the trial court should have requested a corrected
presentence report when it found that the matrix relied on false information.
He also argues that the court should have allowed Harmston to call witnesses at
the postconviction hearing.  We reject these arguments and affirm the judgment
and order.
Pursuant to a plea agreement, Harmston entered a no contest plea
to one count of sexual contact with a minor and the State recommended a three-
year sentence, consecutive to an unrelated sentence.   At the sentencing hearing,
the  parties addressed  some problems with  the  presentence  report  and  the
sentencing matrix.   The prosecutor acknowledged that the matrix was incorrect
in two respects:   it indicated a criminal history of six when the correct score
should have been two and it incorrectly described the severity of the offense,
adding  two  points  for  intercourse  when  this  offense  involved  only  sexual
contact.    The trial court indicated that it would not consider the defective
matrix.  The court then sentenced Harmston noting that he was on probation for
an earlier sexual assault when he assaulted his granddaughter, that he was
unwilling to accept responsibility for his actions, blamed the victims and others
for his crimes, threatened a probation officer, showed no empathy for the
victims, had a history of aggression and alcohol abuse, refused to participate in
the presentence evaluation, and failed to benefit from prior sexual counseling.
Even  if  the  trial  court's  failure  to  consider  the  sentencing
guidelines were reviewable on appeal,1 the record does not support Harmston's
assertion that the trial court failed to consider the guidelines or state its reason
for deviating from them.   In the process of explaining its reasons for imposing
the ten-year sentence, the trial court also stated its reasons for not imposing the
sentence suggested by the guidelines.   The court rejected the guidelines; it did
not fail to consider them.   The reasons recited by the court, the vulnerability of
the victim and Harmston's attitude, constitute an adequate explanation of the
court's reason for deviating from the guidelines.
1  But see State v. Halbert, 147 Wis.2d 123, 129-32, 432 N.W.2d 633, 636-37 (Ct. App. 1988),
aff'd by an equally divided court in State v. Elam, 195 Wis.2d 683, 685, 538 N.W.2d 249, 250
(1995).
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No.   96-1472-CR
The trial court was not required to adjourn the sentencing and
request a corrected presentence report.   A defendant has no right to a sentence
recommendation by the person who authors a presentence report.  Wheatherall
v.  State,                                                                            73  Wis.2d  22,  33,  424  N.W.2d  220,  225  (1976).    The  trial  court
ascertained and corrected the errors contained in the presentence report and
based its sentencing determination on the correct facts.   The court specifically
disclaimed any reliance on the recommendation made in the presentence report
because it was based on an incorrect matrix.  The trial court was not required to
seek the recommendation of another presentence report.
The trial court properly refused to allow witnesses to testify at the
postconviction hearing.    Harmston attempted to call his wife and son, the
victim's father, in support of his motion to reconsider the sentence.   No hearing
was required on this motion.   A court should not reduce a sentence simply on
reflection or second thoughts.   See State v. Johnson, 158 Wis.2d 458, 467, 463
N.W.2d 352, 356 (Ct. App. 1990).   A sentence may be modified only when new
factors are brought to the court's attention or when the court has imposed an
unduly harsh or unconscionable sentence.   State v. Macemon, 113 Wis.2d 662,
668 n.2, 335 N.W.2d 402, 406 (1983).   Harmston disclaimed any reliance on new
factors and has never asserted that the circuit court improperly exercised its
discretion by imposing the ten-year sentence.  Rather, he merely urged the court
to "reconsider" the sentence and to "possibly relent a little bit."   No hearing is
required to deny a motion that fails to state any legitimate basis for relief and
the trial court properly refused to take additional evidence at the postconviction
hearing.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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