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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the 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 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.
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.