              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1224

                                Filed: 6 August 2019

Pitt County, No. 17 CRS 1930

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




      Appeal by respondent from order entered 31 May 2018 by Judge Marvin K.

Blount in Pitt County Superior Court. Heard in the Court of Appeals 22 May 2019.


      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
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                                   Opinion of the Court



      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.




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      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



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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?


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             ...

             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.

             ....



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               [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 disrepute,” and were “disrespectful,” “inappropriate,” and “unnecessary.”

         Judge Foster entered an order for Respondent to show cause why he should

not be held in contempt or disciplined. The order alleged Respondent: (1) showed “a

disregard for the dignity of the Court”; (2) “demonstrated undignified and

discourteous conduct”; (3) “[m]isled the Court by making statements he knew or

should have known to be false”; and, (4) “[a]cted to create a false record.”

         The Office of Counsel of the State Bar was appointed to prosecute the matter.

Respondent filed a motion to recuse Judge Foster, which was granted by the trial

court.

         A hearing was held in two phases: the first phase was to determine whether

Respondent had violated the Rules of Professional Conduct or was guilty of criminal

contempt, and, if so, the second phase was to determine the appropriate discipline.

The trial court found Respondent was not guilty of criminal contempt, but found he



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had violated Rules 3.3(a)(1), 4.4(a), 8.2(a), 8.4(c), and 8.4(d) of the Rules of

Professional Conduct.

      After hearing additional evidence concerning sanctions, the trial court

suspended Respondent’s license to practice law for two years.       Respondent was

provided the opportunity to request a stay of the suspension after six months had

elapsed and after compliance with various requirements.

      Respondent entered notice of appeal. The trial court denied his motion to stay

the order of discipline.    This Court granted Respondent’s motion for writ of

supersedeas and stayed enforcement of the order of discipline until the disposition of

this appeal.

                                   II. Jurisdiction

      An appeal of right lies to this Court pursuant to N.C. Gen. Stat. § 7A-27(b)

(2017).

                                      III. Issues

      Respondent argues the trial court erred by finding and concluding: (1)

Respondent had made false statements of material fact regarding when he had

learned of Officer Sinclair’s unavailability, which misled the trial court; (2)

Respondent’s statement that “there were felonies on the docket is my understanding”

created a material misrepresentation that Respondent knew or should have known




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was false; and, (3) Respondent had refused to acknowledge the wrongful nature of his

conduct and his apology to the Court was “unavailing.”

                               IV. Standard of Review

      Respondent asserts this Court’s standard of review on an order of discipline is

the whole record test. He cites N.C. State Bar v. Livingston, __N.C. App. __, __, 809

S.E.2d 183, 188 (2017), for support. The order in Livingston was entered by the State

Bar Disciplinary Hearing Commission. Id.

      The North Carolina State Bar (the “State Bar”) asserts the appropriate

standard of review is whether competent evidence supports the findings of fact, since

this is a matter brought by a court in the exercise of its inherent disciplinary power

over officers of the court and members of the bar. In re Key, 182 N.C. App. 714, 717,

643 S.E.2d 452, 455 (2007); State v. Key, 182 N.C. App. 624, 626, 643 S.E.2d 444, 447

(2007).

      Respondent argues the proceedings before us are more like a disciplinary

hearing, as compared with the proceedings in the Key cases, which were prosecuted

by the local district attorney and the State Bar. We find this argument unconvincing.

      As in the Key cases, this matter was initiated by a judge of the superior court

pursuant to the court’s inherent authority to discipline attorneys and under N.C. Gen.

Stat. § 5A-15(a). The appointment of counsel of the State Bar to prosecute this

matter, given Respondent’s employment by the district attorney, rests within the



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authority of the court, and does not remove the proceeding from its authority. N.C.

Gen. Stat. § 5A-15(g) (2017) (“The judge presiding over the hearing may appoint a

prosecutor or, in the event of an apparent conflict of interest, some other member of

the bar to represent the court in hearings for criminal contempt.”).

      Our review of the trial court’s findings of fact “is limited to whether there is

competent evidence in the record to support the findings.” In re Key, 182 N.C. App. at

717, 643 S.E.2d at 455. “It is irrelevant that the evidence would also support contrary

findings of fact.” Id. at 717-18, 643 S.E.2d at 455.

      “Where the trial judge sits as the trier of the facts, his findings of fact are

conclusive on appeal when supported by competent evidence. . . . The appellate court

cannot substitute itself for the trial judge in this task.” Gen. Specialities Co. v. Nello

L. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979) (internal citations and

quotations omitted).

      The trial court’s conclusions of law, which must be supported by its findings of

fact, are reviewed de novo. Couch v. Private Diagnostic Clinic, 146 N.C. App. 658,

664, 554 S.E.2d 356, 361-62 (2001). Any sanctions imposed are reviewed on appeal

for abuse of discretion. Id. at 664-65, 554 S.E.2d at 362.

                                      V. Analysis

      The inherent power of Justices and Judges of the General Courts of Justice to

discipline members of the Bar as officers of the court predates and remains more



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comprehensive than the statutory powers initially and subsequently provided by the

General Assembly to the State Bar. Swenson v. Thibaut, 39 N.C. App. 77, 109, 250

S.E.2d 279, 299 (1978). It is axiomatic that judges must rely upon the honesty and

veracity of all witnesses and participants, and particularly the full disclosure and

candor by members of the Bar, to be able to administer and render fair and impartial

justice. See id.

       The trial court found and concluded Respondent’s conduct during the Aguilar

hearing, and its dismissal and aftermath, constituted grounds for discipline.

Respondent challenges two of those conclusions of law. Respondent also challenges

one finding of fact and conclusion concerning his apology.

                   A. False Statement Concerning Officer Availability

       The superior court concluded:

              That [Respondent], by claiming to the Court to have
              learned of Officer Sinclair’s unavailability only minutes
              before a hearing on the State’s motion to continue and
              thereby misleading the Court by making a material
              misrepresentation of facts upon which the Court acted,
              violated Rule 8.4(c) and Rule 3.3(a)(1) of the Rules of
              Professional Conduct[.]

       Respondent asserts this conclusion “is not supported by the findings of fact and

is greatly at odds with the evidence presented at the hearing.” Based upon this

Court’s standard of review, we disagree. See In re Key, 182 N.C. App. at 717, 643

S.E.2d at 455.



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      North Carolina’s Rules of Professional Conduct provide: “It is professional

misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit

or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.” N.C.

R. Prof. Cond. Rule 8.4(c). Additionally, “[a] lawyer shall not knowingly . . . make a

false statement of material fact or law to a tribunal or fail to correct a false statement

of material fact or law previously made to the tribunal by the lawyer.” N.C. R. Prof.

Cond. Rule 3.3(a)(1).

      Here, competent evidence supports the superior court’s disciplinary order.

Respondent made two statements to Judge Foster regarding Officer Sinclair’s

availability that implicated rules 8.4 and 3.3. First, when Judge Foster questioned

why Officer Sinclair was not present to testify, Respondent replied, “I could not tell

you. Ms. Stroud in our office told me today that she was in Huntersville. And I want

to say actually [she] has a job in Huntersville in training with the police department.”

Second, in response to Judge Foster’s question to Respondent of when “did y’all know

that [Officer Sinclair] was going to be unavailable,” Respondent stated, “I found out

today, your Honor, at approximately 12:15.” (Emphasis supplied).

      Respondent’s statements could be found to be a misrepresentation of facts that

could have misled the court to believe the District Attorney’s office had learned of

Officer Sinclair’s absence only that day. This potential to mislead the court may have

prompted Atwood to interject and clarify Respondent’s statements, by saying, “I was



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made aware Monday. [Officer Sinclair] contacted our office and said she is in training

with the police department.” During Respondent’s hearing, Atwood was asked and

clarified why he felt the need to interject:

             [COUNSEL]: And how did you take that question in terms
             of who he [Judge Foster] was asking?

             [ATWOOD]: Mr. Entzminger and I were both standing at
             the counsel table. Mr. Entzminger was – made the motion
             to continue, but since I was standing with him, Mr.
             Entzminger gave his answer and I felt it proper to clarify
             with my answer.

             [COUNSEL]: And why did you feel like after Mr.
             Entzminger said, well, I just found out at 12:15 that you
             needed to also answer?

             [ATWOOD]: To just be truthful with the Court at that
             point that I had – I had found out at some point Monday
             after 10:18. I didn’t want – I didn’t want Judge Foster to
             think that we had just found out on Wednesday at
             whatever time it was. I wanted him to know that it was at
             some point Monday after 10:18, or whenever it was.

      Atwood made similar statements on cross-examination:

             [COUNSEL]: Mr. Atwood, you said you didn’t want Judge
             Foster to think that you didn’t know that Officer Sinclair
             was unavailable?

             [ATWOOD]: I just didn’t want – I wanted to clarify Mr.
             Entzminger’s answer, that it wasn’t at – whatever his
             response was. I wanted to clarify with my knowledge.

             [COUNSEL]: You felt it needed clarification?

             [ATWOOD]: Correct. I just wanted Judge Foster to hear
             my answer.


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         Judge Foster’s question was directed at both Respondent and Atwood as

representatives of both the district attorney’s office and the State, and was inquiring

when they or their office and the State had collectively learned of Officer Sinclair’s

unavailability. Respondent’s answers were found to potentially have misled the

court, a violation of the rules of professional conduct:

               an assertion purporting to be on the lawyer’s own
               knowledge, as in an affidavit by the lawyer or in a
               statement in open court, may properly be made only when
               the lawyer knows the assertion is true or believes it to be
               true on the basis of a reasonably diligent inquiry. There are
               circumstances where failure to make a disclosure is the
               equivalent of an affirmative misrepresentation.

N.C. R. Prof. Cond. Rule 3.3, cmt. 3 (emphasis supplied).

         Respondent’s statement that he had just found out about Officer Sinclair’s

unavailability that afternoon could have been stated in Respondent’s ignorance of the

truth. However, this statement belied the truth that the district attorney’s office was

made aware of the officer’s absence over a week before the case was to be called, no

subpoena had been issued, and it had simply failed to act upon the information

received until Respondent moved for a continuance and made representations to the

court.

         Respondent’s statements prompted the presiding judge to question whether

Officer Sinclair was ignoring a subpoena, to check the court file, and to decide

whether or not the court should issue a show cause order to appear. Ultimately,

Respondent stated he could not make the representation Officer Sinclair had, in fact,

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been subpoenaed.     After the court reviewed the court file for the presence of a

subpoena and found none, it denied the State’s motion to continue.

      The trial court found Respondent’s answers did not disclaim knowledge, failed

to disclose the true facts known by the State, led the court to question the duty and

motivations of other actors and officers not present in court, and tended to shift the

blame elsewhere for the State’s essential witness not being present.

      The superior court found these statements violated Rules 8.4(c) and 3.3(a)(1)

of the Rules of Professional Conduct. Competent evidence in the record supports

these findings of fact. “It is irrelevant that the evidence would also support contrary

findings of fact.” In re Key, 182 N.C. App. at 717-18, 643 S.E.2d at 455. Respondent’s

argument is overruled.

                         B. Statement Concerning the Docket

      When Judge Foster asked why the State did not call the Aguilar case for trial

first, Respondent replied, “There were felonies on the docket is my understanding.”

(Emphasis supplied). Judge Foster responded: “No, there weren’t. They were all pled

out last week.”    At the hearing, the trial court concluded it was a material

misrepresentation that Respondent knew or should have known to be false, and this

statement constituted another violation of Rule 8.4(a) of the Rules of Professional

Conduct.




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      The trial court’s finding and conclusion that this statement was a material

misrepresentation of fact to the court is not supported by competent evidence.

Respondent relied upon the trial docket and calendar and represented facts he

believed to be true, with the qualification of “in my understanding.”

      Atwood, as Respondent’s co-counsel, immediately supplemented the response:

             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?

             [ATWOOD]: Your Honor, due to the number of motions
             that were in this particular case, we decided to place two
             cases in front of it that did not have the amount of motions
             to try to go ahead and knock out a couple of cases.

      Respondent’s first response of “There were felonies on the docket is my

understanding” was a truthful statement. At the disciplinary hearing, the trial court

made factual findings that: (1) there were felonies originally calendared on the

docket; (2) Respondent had no involvement in the Aguilar case “from 25 August 2017

until approximately 12:15 pm on 13 September 2017”; (3) Respondent “was not

assigned to represent the State during the 11 September 2018 trial session and did

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not appear in court before Judge Foster during that session until he was summoned

to by someone in the DA’s office to appear in Superior Court”; and (4) Respondent

“had not participated in any trial preparation regarding the case.”

       A conclusion that Respondent engaged in conduct involving misrepresentation

that reflected adversely on his fitness as a lawyer does not logically follow from the

factual findings that Respondent had no involvement with the case between the time

that the felonies on the docket were pled out and the moment before the hearing in

question. Respondent, when specifically asked, recited a fact that was true at the

last point of his knowledge, and also qualified it as such.

       No evidence supports a finding or conclusion that Respondent engaged in

misrepresentations concerning the docket and the reasons for the order in which the

Aguilar case was called for trial, in violation of N.C. R. Prof. Cond. Rule 8.4(c). This

conclusion is reversed.

                               C. Respondent’s Apology

       Respondent asserts his apology to the court was “direct and unequivocal” and

challenges Finding of Fact 5: “[Respondent’s] apology to Judge Foster was

unavailing,” and the inclusion and consideration of “[Respondent’s] refusal to

acknowledge [the] wrongful nature of conduct” in the conclusions regarding

discipline.




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      Respondent argues the trial court improperly considered his defense raised

during the adjudication phase against him during the dispositional phase, in violation

of N.C. State Bar v. Rogers, 164 N.C. App. 648, 657, 596 S.E.2d 337, 343 (2004). The

findings of fact related to Respondent’s conduct leading to and during the

adjudication phase include:

             1. Entzminger sent an electronic communication to Judge
             Foster on 3 November 2017 stating, in part, that his
             language in the Aguilar dismissal was directed at Robinson
             [defense counsel], not Judge Foster.

             2. Entzminger’s electronic communication to Judge Foster
             further states that there was no disrespect for Judge
             Foster’s ruling in the filed dismissal.

             3. Leading up to and through the hearing in this matter,
             Entzminger continued to claim, in the face of clear evidence
             to the contrary, that the language in the “Prosecutor’s
             Dismissal and Explanation” was not directed at Judge
             Foster.

             4. Entzminger did not apologize to Judge Foster at any
             point from the time he filed the “Prosecutor’s Dismissal and
             Explanation” to the time of the hearing in this matter.
             Entzminger took the stand on the second day of the
             hearing, after the Court found that Entzminger had
             engaged in professional misconduct, and apologized to
             Judge Foster.

      Respondent is correct in arguing that an attorney may defend against charges

of professional misconduct without his defense being used against him in the

dispositional phase. See id. His assertion of his lack of an apology to Judge Foster




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prior to or during the adjudication hearing being held against him in determining the

appropriate discipline is not supported by the findings.

      The trial court explicitly found that after being found to have engaged in

unprofessional conduct. Respondent did, in fact, apologize to Judge Foster:

             Judge Foster, I apologize for my actions. The language that
             was put in the dismissal was inappropriate, should not
             have been there. It was – could have been seen as directed
             towards you, which it was not. I shall always yield
             gracefully to any ruling that you have. You should know
             the only reason that I have not been to you – the only
             reason why I have not been by your office, sat down in your
             office, the only reason I have not talked to you in the
             hallway has been under the advice of both counsel as well
             as those that I have asked since this began. I realize that
             when I sent you text messages, when I left you a phone
             message in order to set up a meeting, instead I should have
             just gone to your office. By the time I received counsel from
             others they said it was probably not a good idea. I wanted
             nothing more than to look at you and say I apologize for
             anything that I put in the dismissal. And I’m not just
             saying that just because here we are now. I’m really not. I
             was prepared to do this last Tuesday, I was prepared to do
             this last February, I was prepared to do this back at the
             end of September, before October the 2nd. I have always
             been prepared to do this. Yesterday if you would have been
             in court, in the afternoon you had to go somewhere, I would
             have said the same thing, that I deeply apologize to you.
             But more to the point I apologize to Mr. Walthall. I
             apologize to Mr. – the other Bar representative, I forget his
             name. And I apologize to Judge Blount. It is my actions
             that have brought us here today and I apologize for wasting
             the Court’s time with something like this.

      Despite Respondent’s explanations and assertions, the trial court found his

apology lacking.     Respondent admitted under cross-examination during the


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dispositional phase of his trial that at least part of the language from his order of

dismissal could have been construed as being directed at Judge Foster’s ruling on

denying Respondent’s motion to continue. Respondent’s dismissal specifically states:

“Oddly enough, the judge indicated the DWI case should have been set further up in

the calendar because defendant was from Hawaii.” (Emphasis supplied).

       The trial court included this finding of fact regarding discipline, which

Respondent does not challenge and is binding upon appeal:

              14. Contrary to the overwhelming weight of the evidence
              presented at the hearing, Entzminger’s continued attempts
              to maintain that the dismissal language was not directed
              at Judge Foster and that he meant no disrespect to Judge
              Foster by his conduct demonstrates Entzminger’s refusal
              to acknowledge the wrongfulness of his conduct.”

“[U]nchallenged findings of facts are binding on appeal.” N.C. State Bar v. Key, 189

N.C. App. 80, 87, 658 S.E.2d 493, 498 (2008) (citing Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991)).

       Competent evidence exists to support the challenged finding of fact, which,

along with uncontested findings, supports the challenged conclusion of law. This

Court does not find facts or “substitute itself for the trial judge.” Gen. Specialties Co.,

41 N.C. App. at 275, 254 S.E.2d at 660. Respondent’s argument is overruled.

                                     VI. Conclusion

       Competent evidence in the record supports the challenged findings of fact that

Respondent had made false statements of material fact regarding when he had


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learned of Officer Sinclair’s unavailability, which misled the trial court, and that

Respondent had refused to acknowledge the wrongful nature of his conduct and his

apology to the Court was “unavailing.” In re Key, 182 N.C. App. at 717, 643 S.E.2d at

455. Those challenged conclusions of law are supported by the trial court’s findings

of fact and are affirmed.

       The trial court’s conclusion of law that Respondent’s statement that “there

were   felonies   on   the   docket     is   my       understanding”   created   a   material

misrepresentation that Respondent knew or should have known was false is a

conclusion of law unsupported by competent evidence and is unsupported by the

findings of fact. This conclusion is reversed.

       Respondent failed to challenge or argue the trial court’s conclusion, or the

findings of fact supporting it, that Respondent’s filing of the dismissal violated Rules

8.4(d), 8.2(a), and 4.4(a) of the Rules of Professional Conduct and “constitute[d]

grounds for discipline.” See N.C. R. App. P. 28(a) (“The scope of review on appeal is

limited to issues so presented in the several briefs. Issues not presented and discussed

in a party’s brief are deemed abandoned.”).

       The trial court’s order for discipline is affirmed in part, reversed in part, and

remanded for a new hearing on the disciplinary sanctions to be imposed. It is so

ordered.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



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                     IN RE ENTZMINGER

                      Opinion of the Court



Judges BRYANT and ZACHARY concur.




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