IN THE MATTER OF: PHILLIP ENTZMINGER, Assistant District Attorney Prosecutorial District 3A
in the Court of Appeals 22 May 2019.
by respondent from order entered 31 May 2018 by Judge Marvin
K. Blount in Pitt County Superior Court No. 17 CRS 1930.
North Carolina State Bar, by Deputy Counsel David R. Johnson
and Counsel Katherine Jean, for appellee.
Widenhouse, by M. Gordon Widenhouse, Jr., for
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.
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
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.
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.
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
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.
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
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
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
following colloquy occurred with Respondent, Atwood, and
THE COURT: Well, why didn't you call this case first?
[Respondent]: There were felonies on the docket is my
THE COURT: No, there weren't. They were all pled out last
[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
. . .
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
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.
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.
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 ...