Lw\ycr DisCiplillJI)' Actions proceeding after being se ntenced (0 a much grea ter amount of tim e than he was informed by hi s anorneys, Mr. Rose and Mr. Woods. The hearing on [he post-convictio n pleading was held on November 15, 2005. Following the filing of rhe post-hearing briefs by bmh sides, Magistrate Judge Beverl y Stites Jon es scm a request thar bmh sid es submit briefs on dlC iss ue of a requested appeal. Magistrate Judge Stites deni ed the Section 2255 I11mion filed by Mr. Fischer. Judge Jimm Larry Hendren filed his Order in rhe matrer 0 11 Ocrobe r 1 I, 2006. Judge Hendren specifically found that Mr. Fischer clearly con veyed his desire [Q appea l and that his anorneys (Rose and Woods) did nor fil e a timely Nor ice of Appeal. Based upon thi s, the Coun found that Mr. Fischer received ineffective ass istance of counsel. Based upon his findi ngs, Judge H endren set a rese ntencing. Following me re-se ntencing, Mr. Fischer's rime of incarceradon was reduced from 46 momhs to 35 momhs. The fin e and th e restitution remained me same. In responding to the formal disciplinary complaint, Mr. Rose denied that he fai led to file a timely Not ice of Appeal and explained that his diem , Mr. Fischer, never clearly conveyed hi s desire to ap peal. Acco rding to Mr. Rose, the only time me word "appeal " was used was when his client asked immedia tely foHowing senrencing "can we appeal this." Mr. Rose replied that "yes ," Mr. Fischer cowd, bur thar then was nOt rhe time [0 discuss it. Mr. Rose offered that he explained the fmiliry of an appeal to Mr. Fischer and th en suggested that he come to his office to discuss it further. Mr. Rose advi sed th e Committee thar Mr. Fischer never came to his office or called him [Q discuss an appeal after th ey left th e se ntencing. Mr. Rose averred thar he wo uld have filed a Notice of Appeal if Mr. Fischer had eve r requested him to do so. Mr. Rose dispured the infonnal"ion provided thar Mr. Fischer co macred his office three times following the sentencing. M r. Rose said that, if that had occurred, he would have returned the telephone cal l. Mr. Rose also explained that he did nOt remember making the statemenr that Mr. Fischer "no doubt wanted to appeal" during an interview with the Federal Public Defender and their investiga tor, as testified to by Mr. Woods and the inves tigamr during the evidemiary hea ring in November 2006. Mr. Rose stared
[hat if he did make the statement, he was only [Q say it was evidenr two (2) years after that sentencing hea ring that M r. Fischer had wanred to appeal. In co ncluding hi s response, Mr. Rose offered that Mr. Fischer is actuall y betrer off than he would have been if an appeal had been fli ed. There is no doubt in Mr. Rose's mind thar had Judge H endren 's decision nor to accept
the plea bargain and {Q go with the new high er loss been appealed, it wou ld have been affirmed because {here was norhing faulty in the reasoning or decision. However, because Mr. Fischer filed [he pleading he filed and was able to ge t back before Judge Hendren, he was gran red a new sentencing hearing and Judge H endren reduced Mr. Fischer's rime of incarceration. Wh ile remaining res pecrful
Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer
41