appeal of that case is intimately related to the issues here what is the status of a case the case became final and i believe it's six if i can just think actually have a timeline on this because the the facts in the two cases relating to each other are so complex i have noted that in february of zero six conviction two becomes final in pennsylvania challenging the parole denial what's occurred status if you are in i believe that that case is final at this point there's no appeal on the second conviction he was convicted he was treatment program one of his concerns is that statements that he made there would would prejudice him with regard to the in the appeal is that well that would prejudice him in the event that you know certainly in every guard to the appeal it would prejudice him in the event that he appointed a new trial would prejudice him obviously if other criminal behavior were to have been revealed what these issues are would be moot those as well other than additional criminal behavior which wouldn't be moot but in terms of the pendency of his second conviction yes that would be moot because in fact he says he's arrested in two thousand and then begins a fairly complex calculation of his parole status from the first conviction which is not really before this court this point but the essence of his claim is a mimicry he first makes the fifth amendment claim in the district court but he's not present he would not be pressing it anymore because he's appeal is finished not and not well he this is still immediately let's say then he begin serving the time for his second conviction i see so he's looking for credit for time that he hasn't spent the rest of heat he would have faced a second conviction he had sixteen thirty two there's at but there's nothing to prevent him from going to the parole board and satisfying their requirements that he participate in this program he can he can no longer say i would incriminate myself if i have to admit the the events of the sexual contact at the time he filed the petition that's not correct at the present time i believe that it is correct except as to additional criminal that's why i said he can no longer take that  before the magistrate as of exhausted in the hague a sense of exhausted before the state court i think that the issue is that the state court at that time and actually this time has still comes along allows the mandamus action then there's there's an interplay between this court in the state courts and there's a certified question that goes and i believe it was cody it comes back to ex post facto can be raised in this court concludes that a fifth amendment claim cannot be raised but some courts state courts had said that a constitutional claim could be presented in a mandamus petition subsequent to this court's decision and before way there are several cases in the commonwealth courts that analyze that there's no pennsylvania supreme court that says supreme court decision that says yes you can raise all the constitutional place they've never done that have not been state courts and said that we can consider constitutional claims when he presented his mandamus in pennsylvania state court they've not said subsequent yes we can do what they've done it they've point when roman files this petition it's pretty clear because we've or is out there saying no and this court is out there and before  the cases that have considered this and there have been numerous in various circuits that's been coming up the more and more the sex offender treatment program the you who are there's one actually on the ninth circuit that's gone  it's called us versus antelope and the mchugh case really says there's a continuum of compulsion if you only if you refuse to participate in the treatment program t  participating in the admissions part of the program that he is being denied consideration for parole granted he has come up and have parole hearings and he gets the standard form listing of reasons why we're not granting you parole but the real thing going on here is that he's been denied parole and what he's saying is nobody who fails to make these admissions in the context of this program is getting parole so therefore we're very far along this continuum of compulsion we're really into one of the things that justice o'connor gave us an example which was a denia so what he's saying is by virtue of being unwilling to participate in this admissions part of the program where he would have to admit his prior conduct that that is so far along the continuum that it does fall into a compulsion it's very distinct from the multitude of these cases where you only have one conviction and what happens is you don't get a problem that conviction bearing in mind the conviction that he's being denied reports all on is one carrot a very lengthy sentence and he will conclude that until i believe now now i have to make these admissions this is a problem so it's a problem because it was factor it he's arguing is that in the context of an ex post facto but someone looking at this the say you're concerned about the fact you're going to have to make the commonwealth court mandamus petition he seemed if you look at the petition itself to think that he was exhausting his required remedies and there was no mention of ours a series of decisions rogers was the first pennsylvania supreme court case that implied that mandamus was an available remedy for people who've been didn't denied parole misgivings is right that was in had only been asked by this court to answer the question of whether a person raising an ex post facto challenge can bring any action in the pennsylvania court system so that was all they really had to look at one of the points that came up during the appellant's argument was whether there was anything before the weaver case and i don't know about before but within a matter of months after and long before it seemed like it was a moving target after a petition or how do you decide the way or the other well i can't say that the state decisions were crystal clear though i know they're not but i can make a couple of points as to why i said i still say that the issue could and should have been raised here this court itself in bearcat had predicted that the pennsylvania courts would permit people denied issue is not exhausted we then send it back to the state court for exhaustion i well i guess you could i agree that the conclusion that would be reached is one that you are permitted to reach yourself because i am wondering if it's just not more practical given the passage of time to deal with the issue on the merits i think that would be quite practical to just say we're permitted to deny a petition for haiti a scorpion may not be happy with the  would be a decision on their rights that's true this case has had an unusually long history and i'm not sure exactly why that is because some of the reasons why there were lags are unknown to me but in any event what i wanted to emphasize was that this court in bearcat had specifically predicted that constitutional challenges could be raised the pennsylvania courts in myers in one nine hundred ninety eight in vos in two thousand and one in evans in two thousand and three all before mr romans case had entertained constitutional challenges so to say and this is the standard on whether exhaustion has or hasn't occurred that he had no remedy at all and it was clearly foreclosed would not be accurate there were reasons to believe that some review was obtainable in pennsylvania courts moving on to the merits i guess as i just said you can reach that and you can rule against the appellant on the merits based on the record that we  have there's no question that to make out a self incrimination claim there are two separate requirements that have to be met both compulsion and the the use of the compelled statement neither one has been well it's certainly a difficult choice to make but i don't think it's compulsion for fifth amendment purposes the supreme court's opinion in ohio adult parole officer if i stick a gun in someone's head and say composer gets to such a boring some point and that's the sliding scale with the ramifications of not doing something i was so significant that almost no reasonable person would decide th stands up when you look at the cases that we have available to us under the fifth amendment because they kind of pressure that mr roman may have felt is is real on a human level i'm not at all disagreeing with that but under the fifth amendment you're not forbidden from being required to make difficult choices on whether you're going to speak or not he has always he had always maintained his innocence was found guilty but always maintained his innocence and then he's in prison he's asked he's asked to participate in drug program but they wanted to say i did you know why he has to confess to that crime which is still an appeal actually your honor i'm i'm a little uncertain about the extent to which he had maintained his innocence obviously he went to trial on a trial on the case but i i don't think there's any way we can tell from the record whether he testified in the senate that it's a good point is that i'm not sure of that either but let's assume that he maintained innocence and it wasn't police he went to trial right now is found guilty and his position is i don't want to admit in the drug program that i did those things because the case is still open well and i just may get do you think compelled to admit to a crime that may still be retried why isn't that a violation of the fifth amendment for the same reason that it wasn't in ohio adult parole for already versus woodward it was at that a state supreme court case under the fifth amendment which didn't involve role but involved clemency interview and that the individual who was challenging on fifth amendment grounds the procedures that were used for clemency interviews said i think i'm still trying to challenge my conviction and and get my conviction overturned if i say something in this clemency procedure to  that would suggest that i'm taking responsibility and admitting remorse and so on i'll be compelled to testify against myself in the supreme court said no these are choices that have to be made along the way in criminal cases and it is unpleasant perhaps but it is not a fifth amendment compulsion situation it's constitutional to expect a person seeking a discretionary  remedy such as clemency or in our case parole to have to confront that difficult choice and make the choice now there's no requirement that he do it that the consequence though is that he stays in prison for a longer and longer term or may stay in prison we don't have any reason in this record to to infer that simply not participating in the sex offender program is what caused mr roman not to be paroled in as a matter of fact the opposite is true as one of the front of the requests that he has it send it back for a hearing to determine the facts but what i'm i know that he's asking for that but what i'm bringing out is that in the two thousand and three and two thousand and four five denials both denials there were several reasons listed for denying parole not participating in the program was one and and he was definitely told you you know we're going to consider it next time if you don't participate when you come back before us your view is that even if that was the sole reason it's not sufficient he still does not have a fifth amendment right well that's probably true but i think what i think i'm hearing now is that it wasn't the sole reason and therefore to say that he would have been paroled except for this is simply not logical because he had failed on his first parole attempt and he had other three times three reasons and one of the denials and six reasons in the other for the denial only one of be use of the fifth amendment well being that the ohio be woodward case is not a use situation but it didn't seem concerned about the sort of abstract possibility that it could be used against the individual more recently than that though in the the renda case of this court which looks back to the supreme court's schabas case this court pretty strictly construed use because in random if i'm remembering the facts correctly the individual made statements that were indeed used to develop probable cause but they were not used at a don't really know for sure that the alleged statements or possible statements would indeed have been used however the appeal isn't pending anymore and hasn't been pending since at least two thousand and six in fact that the  it's on the direct appeal was i think in two thousand and four so it's been a long long time since he could realistically argue my criminal case is still open i think miss givens was pretty candid about that the criminal case is not open anymore and it wasn't open when this case was decided in federal court it had it had already ended in the pennsylvania appellate direct reviews procedure so there is no chance that the that the admission that he thinks he would have to make could have possibly been used against him in the prosecution of the sex offense because that was done second sentence until he finishes the program and well if he's now going to finish the program he can literally stay in prison indefinite anybody who is given a sentence in pennsylvania and i presume elsewhere is excuse me with a live sentence could be life you would be looking at the first sentence was pretty lengthy but and that by violating his parole he lost his street time it was seventy seven and a half to fifteen but it was double that  oo yes because to know how nts but after that parole violation his sentence was recalculated and his maximum date according to the document page seventy six of the record is february twenty eighth two thousand and fifteen so it was double now i was saying that there were to two consecutive charges in the for in the original prosecution sentence consecutively and each sentence was fifteen to thirty then he ends up with a sense of no this is the original sentence so they have was seven have to fifteen and it became fifteen to thirty but the amount of time that he has to spend in prison is never more than thirty years he he spent part of it before he was originally then he was paroled but because of his subsequent conviction all the time on the street doesn't count anymore so the balance is still being served right now most of it has been served is maximum release date when he will turn over to his second sentence if nothing else happens it's february twenty eighth two thousand and fifteen parenting and you have a pretty relying upon the waiver that might arise from  fifth amendment is maybe too late and when you are relying upon the ice i submit that it is too late and i think i pointed that detail out in the brief i did not argue waiver in our brief nobody responded to his your there is a trial transcript that exists of the court would like me to submit it i will of the proceedings in his second trial he did testify but he did not involvement in the in the events underlying the conviction so the what about this idea that his his appeal was really done by the time he raised the how does that affect your your view before that we should consider the claim with regard to the total time spend so you should consider the claim because what's at stake is really six years of time where he was not making any statements because of his fifth amendment right but he was still serving a sentence that is required because of his violent action but he could have been considered for parole within that period of time he could have been final for the time he raises the issue of fifth amendment claim in federal court is the fifth amendment green is arguing about is not be composed into emitting the which the parole commission was putting his failure to talk and that he should be considered for parole the generally back as of two thousand when when  when he or two thousand and one and if he's admitted to parole on the first case at that point then he would have already now served the second so he you say these are asking is basically to turn th noongar exist because he doesn't have with her right and if you ask me to correct you can't you parole board can i consider the fact that he's refusing to incriminate himself because he has a right so you ask what are the chances of the group were coming up with a different decision if that were to happen well the fact that they paroled him the first time and they had no you know the all the other issues that they paid in programs there's another one i mean i think that that's just a way another way of articulating year not participating fully in this program that we want you to because you're  admitting to things that we want you to admit that's another way of saying it so you're to accept responsibility for the crime there's a third way of saying it i think i think the various reasons that they're giving if you strip away the fact that he's not on this program for fifth amendment purposes i think they go away because he was paroled initial now granted he committed another crime there's no getting out of that but even though he committed another crime is that another you know fifteen years worth of parole the wrong that's a that's a very heavy compulsory bone being held to your head at that point and the parole board at that point might well have