Court of Appeals of Arizona, First Division, Department C
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-113527-001 The Honorable Lisa Daniel Flores, Judge
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Section Chief Counsel Criminal Appeals Section Attorneys for Appellee.
Bruce F. Peterson, Maricopa County Legal Advocate Phoenix By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant.
DONN KESSLER, Judge.
¶1 Derrick Michael Antone ("Antone") was tried and convicted of Count 1: second degree murder, and Count 2: leaving the scene of a fatal injury accident. Counsel for Antone filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) . Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Antone was given the opportunity to file a supplemental brief, but did not do so. For the reasons that follow, we affirm Antone's convictions and modify his sentence to reflect an increase to his presentence incarceration credit.
FACTUAL AND PROCEDURAL HISTORY
¶2 Antone was in a parking lot with some female friends when the victim, "A.B., " approached Antone and asked for a ride. Shortly thereafter, a fist fight broke out between A.B. and Antone's party, ending when the females chased A.B. away with tire irons. Antone's party had entered a van when A.B. returned and began throwing rocks at the van. Antone started the van and began chasing A.B. around the parking lot. Antone eventually drove over a curb and struck A.B. with the van immediately before crashing into a telephone pole. Antone saw A.B.'s body as he stepped over it while exiting the van, but Antone did not stop to check on A.B. Instead, Antone attempted to flee in a friend's vehicle and was stopped and arrested shortly thereafter.
¶3 Antone later admitted that he had deliberately aimed the van with the intention of hitting A.B. The van's tire tracks in the parking lot showed signs of acceleration without braking, and a nearby surveillance video captured the van chasing A.B. through the parking lot. A.B. died as a result of his injuries from being struck by the van.
¶4 A jury convicted Antone of second degree murder and leaving the scene of a fatal injury accident. The jury also found that Antone's offenses had "caused physical, emotional, or financial harm . . . to the victim's immediate family." The superior court sentenced Antone to thirteen years' incarceration for second degree murder, with 456 days of presentence incarceration credit, and a three-year supervised probation for leaving the scene of a fatal accident. Antone filed a timely appeal. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(1) (2010).
STANDARD OF REVIEW
¶5 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20. On review, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).
¶6 After careful review of the record, we find no meritorious grounds for reversal of Antone's convictions. The record reflects that Antone was present and represented at all critical stages of trial except when his presence was properly waived, the proceedings were held consistent with the Arizona Rules of Criminal Procedure, Antone was given the opportunity to speak ...