-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 18, 2016

v No. 324594 Lapeer Circuit Court MICHAEL LARRY DUSTIN LEMASTER, LC No. 14-011680-FH

Defendant-Appellant.

Before: G LEICHER , P.J., and J ANSEN and S HAPIRO , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of se cond-degree home invasion, MCL 750.110a(3), possession of burglar’s tools, MCL 750.116, la rceny of a firearm, MCL 750.357b, larceny in a building, MCL 750.360, and possession of a firearm during the commission of a felony (fel ony-firearm), MCL 750.227b. The cou rt sentenced defendant to 4 years and 9 months to 15 years’ imprisonment for the second-deg ree home invasion conviction, 4 to 10 years’ imprisonment for the possession of burglar’s too ls conviction, two to five years’ imprisonment for the larceny of a firearm conviction, two to fo ur years’ imprisonment for the larceny in a building conviction, and two years’ imprisonment f or the felony-firearm conviction. We affirm.

Defendant’s only argument on appe al is that the trial court er red in assessing 10 points for offense variable (OV) 12. We disagree.

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “ ‘Clear error exists if t he reviewing court is left with a definite and firm conviction that a mistake has been made.’ ” People v Miller , 482 Mich 540, 544; 759 NW2d 850 (2008) (citation omitted). “Whether the fact s, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpret ation, which an appellate cour t reviews de novo.” Hardy , 494 Mich at 438.

OV 12 governs contemporaneous felonious criminal acts. MCL 77 7.42(1). MCL 777.42(1) provides for the assessment of 10 points for the comm ission of two contemporaneous felonies involving crimes against a person, or three contempora neous felonies “involving other crimes.” MCL 777.42(1)(b) and (c). If there are no contempora neous felonies, zero points are-2- assessed. MCL 777.42(1)(g ). A felonious cri minal act is conte mporaneous if it “occurred within 24 hours of the sentencing offense” and it “has not and will no t result in a separate conviction.” MCL 777.42(2)(a). See also People v Light , 290 Mich App 717, 722; 803 NW2d 720 (2010).

As defendant argues, and plaintiff concedes, the trial court e rred in scoring OV 12. Nevertheless, resentencing is n ot required. The sentencing gui delines range does not change with the deduction of 10 point s. See MCL 777.64 (providing the sentencing guidelines ranges for class C felonies). “ ‘If a scoring error does not alter th e guidelines range, resentencing is not required.’ ” People v Rhodes (On Remand) , 305 Mich App 85, 91; 849 NW2d 417 (2014) (citation omitted). 1 Defendant is correct that the trial judge stated that he woul d not sentence defendant at the top of the gui delines range for second-degree home invasion, but t hen proceeded to impose the highest minimum sentence under the sentencing gui delines range for that offense. Nevertheless, defendant admits t hat a court speaks through its orders and has provided no caselaw to suggest that remand is required when a trial judge s tates an intention to impose a low sentence but then imposes the maximum. Accordingly, remand for resentencing is not required. See id

.
Affirmed.

/s/ Elizabeth L. Gleicher /s/ Kathleen Jansen /s/ Douglas B. Shapiro

1 We note that defendant does not raise a challenge to his sente ncing under People v Lockridge

, 498 Mich 358; 870 NW2d 502 (2015).