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In re Entzminger

Court of Appeals of North Carolina

August 6, 2019

IN THE MATTER OF: PHILLIP ENTZMINGER, Assistant District Attorney Prosecutorial District 3A

          Heard in the Court of Appeals 22 May 2019.

          Appeal by respondent from order entered 31 May 2018 by Judge Marvin K. Blount in Pitt County Superior Court No. 17 CRS 1930.

          The North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for appellee.

          Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for respondent-appellant.

          TYSON, JUDGE.

         Phillip Entzminger ("Respondent") appeals from an order of discipline, which suspended his license to practice law for two years, with possibility of a stay of the balance of the suspension after six months. We affirm the order appealed from in part, reverse in part, and remand for further hearing on the appropriate discipline to be imposed.

         I. Background

         Respondent was employed as an assistant district attorney ("ADA") in Pitt County when he entered a dismissal of a driving while impaired ("DWI") charge. Haleigh Aguilar was arrested for DWI and driving after underage consumption of alcohol in December 2014. Aguilar's case was one in a series of cases in which the Pitt County District Attorney's Office "employed a novel and unusual procedure to obtain grand jury presentments and indictments in pending impaired driving cases." State v. Baker, __ N.C.App. __, __, 822 S.E.2d 902, 903 (2018). Prior to Aguilar's initial trial and disposition in district court, the district attorney obtained a presentment and indictment from a grand jury in March 2017 and removed the case to superior court. Aguilar's case was set for trial during the 11 September 2017 superior court criminal session.

         Aguilar married a United States Marine Corps service member, who was then stationed in Hawaii. Aguilar moved to Hawaii while her charges were pending. Aguilar's attorney, Leslie Robinson, Esq. contacted Hailey Bunce, the ADA assigned to Aguilar's case, on 8 August 2017 to request the trial be given priority to be heard due to his client having to return to North Carolina from Hawaii. Robinson also requested to be provided advance notice of a possibility of a continuance, and indicated he would oppose a motion to continue if the State did not call Aguilar's case for trial during the scheduled week of 11 September 2017.

         Bunce indicated to Robinson that Aguilar's case was assigned to Respondent. In her reply email, Bunce stated the district attorney's office was unable to guarantee priority and advised Robinson to contact Respondent directly with any additional questions. Respondent was copied on Bunce's emailed response. Robinson then sent his same calendar and notice requests directly to Respondent.

         On 25 August 2017, Respondent replied to Robinson and indicated the trial of Aguilar's case had been assigned to ADA Brandon Atwood. Respondent also indicated to Robinson he could make no promises concerning the priority of Aguilar's case and noted pending felonies would probably have priority for disposition over this case. Robinson then sent the same priority requests previously sent to Bunce and Respondent to ADA Atwood.

         Aguilar flew back from Hawaii to North Carolina for trial and was present for calendar call on Monday, 11 September 2017. Two other DWI cases were called prior to Aguilar's case. Her case was called for trial on Wednesday, 13 September 2017.

         Officer Sinclair, Aguilar's breathalyzer test administrator, was an essential State witness. On 5 September 2017, she had informed a DWI Victim Witness Assistant within the district attorney's office of her unavailability as a witness for court due to training during the week of 11 September 2017. No ADA was informed of this scheduling issue. Officer Sinclair received an email from the district attorney's office on 11 September 2017, requesting her attendance in court. Officer Sinclair replied and again informed them of her conflict and being unavailable at training out of town. No subpoena was issued for Officer Sinclair to be present in court.

         Atwood became aware of Officer Sinclair's impending absence sometime on 11 September 2017. Someone in the district attorney's office sent Respondent to "take over" the Aguilar case on Wednesday, 13 September 2017. Atwood informed Respondent of Officer Sinclair's unavailability. Neither Atwood nor Respondent informed Robinson of the officer's unavailability, nor did Respondent disclose his intention to move to continue the case.

         After lunch on 13 September 2017, Respondent appeared before Resident Superior Court Judge, Jeffery Foster, and moved for a continuance in the Aguilar matter. Robinson objected and presented the history and circumstances of the case and his notices of scheduling with the district attorney's office.

         The following colloquy occurred with Respondent, Atwood, and Judge Foster:

THE COURT: Well, why didn't you call this case first?
[Respondent]: There were felonies on the docket is my understanding.
THE COURT: No, there weren't. They were all pled out last week.
[Respondent]: I think when the calendar was made, your Honor, I think you could make -
THE COURT: But we knew Monday that, that wasn't the case is what I'm saying, so why didn't we go ahead and do this?
. . .
THE COURT: When did y'all know that this officer was going to be unavailable?
[Respondent]: I found out today, your Honor, at approximately 12:15. I was -
THE COURT: When did the officer know?
MR. ATWOOD: I was made aware that the chemical - that the officer in the case was in Huntersville, I was made aware Monday.

         After determining no subpoena was present in the court file or had been issued for Officer Sinclair, the trial court denied the State's motion to continue. The State dismissed the DWI charge against Aguilar and accepted her plea on the driving after consuming while underage charge.

         The next day, Respondent completed a document entitled "Prosecutor's Dismissal and Explanation" which included Respondent's version of the reason for the State's dismissal of the DWI:

This 2014 case was set in superior court. The analyst was unavailable due to training with the Huntersville Police Department (North Carolina). The State made a motion to continue which was denied. Oddly enough, the judge indicated the DWI case should have been set further up in calendar because defendant was from Hawaii. All defendants simply need to move out of state after being charged with a crime if that is the case.
. . . .
[The State] could have proved all the elements but a superior court judge denied the motion to continue for lack of an analyst to show the .12.

         Judge Foster saw and reviewed the dismissal document and spoke with Officer Sinclair concerning her absence for training and learned the true history, including her prior notice of her unavailability and absence as a witness on trial day. After consulting with other judges, Judge Foster "made the decision to begin this action." Judge Foster felt Respondent's comments on the dismissal document "called the Court into ...

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