G.R. No. 244413, February 18, 2020,
♦ Decision,
Carandang, [J]
♦ Concurring Opinion,
Leonen, [J]
♦ Dissenting Opinion,
Caguioa, [J]
♦ Concurring Opinion,
Lazaro-Javier, [J]
♦ Concurring Opinion,
Zalameda, [J]
♦ Concurring Opinion,
Lopez, [J]
[ G.R. Nos. 244413 & 244415-16, February 18, 2020 ]
NURULLAJE SAYRE Y MALAMPAD @ "INOL", PETITIONER, VS. HON. DAX GONZAGA XENOS, IN HIS CAPACITY AS THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF PANABO CITY, DAVAO DEL NORTE, BRANCH 34; HON. MENARDO I. GUEVARRA, SECRETARY OF THE DEPARTMENT OF JUSTICE; AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
SEPARATE CONCURRING OPINION
LEONEN, J.:
With the ponente's indulgence, I offer my views and observations.
On June 14, 2017, Nurullaje Sayre y Malampad alias "Inol" (Sayre) was charged with violating Sections 5, 11, and 12 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Informations against him read:
[Criminal Case No. CRC 416-2017
That on or about 09 June 2017, within the City of Panabo, Davao del Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there, willfully, unlawfully and willingly traded, delivered and sold zero point one zero two nine (0.1029) grams (sic) of Methylamphetamine Hydrochloride (Shabu) which is a dangerous drug, contained in a sachet marked as JSC-BB to PO2 Jefferjun Cabantuan who acted as poseur buyer in a legitimate buy-bust operation, and received from said poseur buyer marked money consisting of one thousand peso (P1,000.00) bill bearing serial number X114893 with the initials JSC on the forehead of Vicente Lim.
CONTRARY TO LAW.1
[Criminal Case No. CRC 417-2017
That on or about 09 June 2017 within the City of Panabo, Davao del Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there, willfully, unlawfully, willingly[, and] knowingly had in his possession, control and custody of Methylamphetamine Hydrochloride (Shabu), a dangerous drug, contained in four (4) separate heat sealed transparent cellophane with their respective markings:
| Marking |
Weight |
| JSC-P1 |
0.087 |
zero point zero eight seven zero |
| JSC-P2 |
0.6543 |
zero point six five four three |
| JSC-P3 |
0.0545 |
zero point zero five four five |
| JSC-P4 |
0.0531 |
zero point zero [five] three one |
CONTRARY TO LAW.2
[Criminal Case No. CRC 418-2017
That on or about 09 June 2017, within the City of Panabo, Davao del Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there, willfully, unlawfully, willingly[, and] knowingly had in his possession, control and custody, one (1) tooter, an equipment, instrument, apparatus and paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting or introducing dangerous drugs into the body.
CONTRARY TO LAW.3
On August 17, 2017, this Court promulgated Estipona v. Hon. Lobrigo,4 which declared unconstitutional the prohibition against plea bargaining in Section 235 of Republic Act No. 9165.
On November 9, 2017, Sayre submitted a Proposal for Plea Bargaining for the lesser offense of violation of Section 12 of Republic Act No. 9165, "without prejudice however to the guidelines on plea bargaining yet to be released by the Supreme Court, whichever is most favorable and beneficial to the accused[.]"6
On April 10, 2018, this Court issued A.M. No. 18-03-16-SC, or the Adoption of the Plea Bargaining Framework in Drugs Cases, which contained a chart outlining the "Acceptable Plea Bargain" for various drug offenses:
| Offense Charged |
Acceptable Plea Bargain |
Remarks |
| Section |
Penalty |
Quantity |
Section |
Penalty |
| Section 11, par. 3. Possession of Dangerous Drugs (Where quantity of shabu, opium, morphine, heroin, cocaine is less than 5 grams) |
12 years & 1 day to 20 years and fine ranging from P300,000 to P400,000 |
.01 gram to 4.99 grams |
Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs |
6 month sand 1 day to 4 years and a fine ranging from P10,000 to P50,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. A straight penalty within the range of 6 months and 1 day to 1 year may likewise be imposed. |
In all instances,whether or not the maximum period of the penalty imposed is already served, drug dependency test shall be required. If accused admits drug use, or denies it but is found positive after drug dependency test he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his after-care and follow-up program if penalty is still unserved. If accused is found negative for drug use/dependency, he/she will be released on time served, otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation center. However, if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof, then the law on probation shall apply. |
| Section 11, par. 3. |
12 years & 1 day to Possession of Dangerous Drugs (Where quantity of marijuana is less than 300 grams) 20 years and fine ranging from fine from P300,000 to P400,000 |
.01 gram to 299.99 grams |
Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs |
6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. A straight penalty within the range of 6 months and 1 day to 1 year may likewise be imposed. |
|
| Section 11, par. 2. Possession of Dangerous Drugs (Where quantity of shabu, opium, morphine, heroin, cocaine is 5 grams or more but not exceeding 10 grams) |
20 years to life imprisonment and fine ranging from P400,000 to P500,000 |
5 grams to 9.99 grams |
Section 11, par. 3. Possession of Dangerous Drugs |
12 years and 1 day to 20 years and a fine ranging from P300,000 to P400,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. |
|
|
|
10 grams and above |
No plea bargaining allowed |
|
|
| Section 11, par. 2. Possession of Dangerous Drugs (Where the quantity of marijuana is 300 grams or more but not exceeding 500 grams) |
20 years to life imprisonment and fine ranging from P400,000 to P500,000 |
300 grams to 499 grams |
Section 11, par. 3. Possession of Dangerous Drugs |
12 years and 1 day to 20 years and a fine ranging from P300,000 to P400,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. |
|
|
|
500 grams and above |
No plea bargaining allowed |
|
|
| Section 12. Possession of Equipment, Apparatus and Other Paraphernalia for Dangerous Drugs |
6 months and 1 day to 4 years and fine ranging from P10,000 to P50,000 |
|
Section 15. Use of Dangerous Drugs |
6 months treatment and rehabilitation |
If accused admits drug use, or denies drug use but found positive after drug dependency test |
|
|
|
|
Undergo counselling program at rehabilitation center |
If accused is found negative for drug use/dependency |
| Section 14. Possession of Equipment, Apparatus and Other Paraphernalia for Dangerous Drugs during Parties Social Gatherings or Meetings |
Maximum penalty in Section 12 |
|
Section 15. Use of Dangerous Drugs |
6 months treatment and rehabilitation |
If accused admits drug use, or denies drug use but found positive after drug dependency test |
| Undergo counselling program at rehabilitation center |
If accused is found negative for drug use/dependency |
| Section 5. Sale, Trading, etc. of Dangerous Drugs (Methamphetamine hydrochloride or shabu only) |
Life Imprisonment to Death and fine ranging from P500,000.00 to P10,000,000 |
.01 gram to .99 grams (metamphetamine hydrochloride or shabu only) |
Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs |
6 month sand 1 day to 4 years and a fine ranging from P10,000 to P50,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. A straight penalty within the range of 6 months and 1 day to 1 year may likewise be imposed. |
In all instances,whether or not the maximum period of the penalty imposed is already served, drug dependency test shall be required. If accused admits drug use, or denies it but is found positive after drug dependency test he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his after-care and follow-up program if penalty is still unserved. If accused is found negative for drug use/dependency, he/she will be released on time served, otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation center. However, if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof, then the law on probation shall apply. |
|
|
1.00 gram and above (methamphetamine hydrochloride or shabu only) |
No plea bargaining allowed |
|
|
| Section 5. Sale, Trading, etc. of Dangerous Drugs (Marijuana only) |
Life Imprisonment to Death and fine ranging from P500,000.00 to P10,000,000 |
.01 gram to 9.99 grams of marijuana only |
Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs |
6 month sand 1 day to 4 years and a fine ranging from P10,000 to P50,000
N.B.: The court is given the discretion to impose a minimum period and a maximum period to be taken from the range of the penalty provided by law. A straight penalty within the range of 6 months and 1 day to 1 year may likewise be imposed. |
In all instances,whether or not the maximum period of the penalty imposed is already served, drug dependency test shall be required. If accused admits drug use, or denies it but is found positive after drug dependency test he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his after-care and follow-up program if penalty is still unserved. If accused is found negative for drug use/dependency, he/she will be released on time served, otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation center. However, if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof, then the law on probation shall apply. |
|
|
10.00 grams of marijuana only and above |
No plea bargain allowed |
|
|
Following this, the Office of the Court Administrator issued Office of the Court Administrator Circular No. 90-2018, enjoining all judges of second level courts to strictly comply with A.M. No. 18-03-16-SC.
The Department of Justice, for its part, issued on June 26, 2018 Department of Justice Circular No. 27, or the Amended Guidelines on Plea Bargaining for Republic Act No. 9165. This also provided its own outline of the "Acceptable Plea Bargain" per offense:
| Offense Charged in Information |
Acceptable Plea Bargain |
| Section |
Penalty |
Section |
Penalty |
| Section 4 Importation of Dangerous Drugs |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 4, par 2. Importation of Controlled Precursors & Essential Chemicals |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain Allowed |
|
| Section 4, par. 3 |
Maximum Penalty |
No Plea Bargain |
|
| Importation thru use of diplomatic passport, etc. |
|
Allowed |
|
| Section 4, par. 4 Acting as Financier in Importation |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 4, par. 5 Acting as "Protector/Coddler" |
12 years & 1 day to 20 years & Fine Allowed from Php 100k to Php 500k |
No Plea Bargain Allowed |
|
| Section 5 Sale, Trading, etc. Of Dangerous Drugs |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
Section 11, par. 3 Possession of Dangerous Drugs
(Plea bargaining is allowed only if the drugs involved are "shabu" and/or marijuana and the quantity of "shabu" is less than 5 grams and the quantity of marijuana is less than 300 grams) |
12 yrs & 1 day to 20 yrs and Fine from Php 300k to Php 400k |
| Section 5, par. 2 Safe, Trading, etc. of Controlled Precursor & Essential Chemicals |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 5, par. 3 Sale, trading, etc. takes place within100 meters from a school |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 5, par. 4 Drug pushers who use minors as couriers, etc |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 5, par. 5 When the victim is a minor causing the latter's death |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 5, par. 6 Acting as Financier |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 5, par. 7 Acting as "Protector/Coddler" |
12 years & 1 day to 20 years & Fine from Php 100k to Php 500k |
No Plea Bargain Allowed |
|
| Section 6, par. 1 Maintenance of Den, Dive or Resort Where dangerous drugs are used or sold in any form |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 6, par. 2 Maintenance of Den, Dive or Resort Where Controlled Precursors and Essential Chemicals are used or sold |
12 years & 1 day to 20 years & Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 6, par. 3 Where dangerous drug is sold or delivered to a minor and is allowed to use it in such place |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 6, par. 4 When the use of dangerous drugs in such place causes the death of a person |
Death & Fine from Php 1M to Php 10M imposed on owner, maintainer and/or operator |
No Plea Bargain Allowed |
|
| Section 6, par. 6 Acting as Organizer, Manager or Financier of such place |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 6, par. 7 Acting as "Protector/Coddler" |
12 years & 1 day to 20 years & Fine from Php 100k to Php 500k |
Section 12 Possession of Equipment, Apparatus & Other Paraphernalia for Dangerous Drugs
OR
Section 15 Use of Dangerous Drugs |
6 months & 1 day to 4 years and a Fine Ranging from Php 10k to Php 50k
6 months Rehab Use of Dangerous Drugs (1st offense 6 years & 1 day to 12 years and a Fine Ranging from Php 50k to Php 200k (for 2nd offense) |
| Section 8, par. 1 Manufacture of Dangerous Drugs |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 8, par. 2 Manufacture of Controlled Precursors and Essential Chemicals |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 8, par. 4 Acting as Financier |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 8, par. 5 Actingas "Protector/Coddler" |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 9 Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain Allowed |
|
| Section 10, par. 1 Manufacture or Delivery of Equipment, Instruments, Apparatus and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (used to plant propagate, cultivate, grow, harvest, etc any dangerous drug, controlled precursor & essential chemical |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 10, par. 2 If paraphernalia manufactured or delivered will be used to introduce a dangerous drug in the human body |
6 months & 1 day to 4 years and fine ranging from Php 10k to Php 50k |
No Plea Bargain |
|
| Section 10, par. 3 If a minor is used to deliver such equipment, instrument, paraphernalia, etc. |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 11 Possession of Dangerous Drugs (Where quantity of shabu is 50 grams or more; opium, morphine, heroin, cocaine and marijuana resin is 10 grams or more; marijuana is 500 grams or more) |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 11, par. 1 Possession of Dangerous Drugs (Where quantity of shabu is 10 grams or more but less than 50 grams) |
Life Imprisonment & Fine from Php 400k to Php 500k |
No Plea Bargain Allowed |
|
| Section 11, par. 2 Possession of Dangerous Drugs (Where quantity of shabu, opium, morphine, heroin, cocaine, et al is 5 grams or more but less than 10 grams; 300 grams or more but less than 500 grams of marijuana) |
20 yrs and 1 day to Life Imprisonment & Fine from Php 400k to Php 500k |
No Plea Bargain Allowed |
|
| Section 11, par. 3 Possession of Dangerous Drugs (Where quantity of "shabu", opium, morphine, heroin, cocaine, et al is less than 5 grams; marijuana is less than 300 grams) |
12 yrs & 1 day to 20 yrs and Fine from Php 300k to Php 400k |
Section 12 Possession of Equipment, Apparatus & Other Paraphernalia for Dangerous Drugs |
6 months & 1 day to 4 years and a Fine Ranging from Php 10k to Php 50k |
| Section 12 Possession of Equipment, Apparatus & Other Paraphernalia for Dangerous Drugs |
6 months & 1 day to 4 years and a Fine Ranging from Php 10k to Php 50k |
Section 15 Use of Dangerous Drugs
(An alternative is to allow the accused to change his plea to "guilty" and avail of the mitigating circumstance of voluntary plea of guilt) |
6 months Rehab (1st offense)
6 months & 1 day to 4 years and a Fine Ranging from Php 50k to Php 200k (for 2nd offense) |
Section 13 Possession of Dangerous Drugs During Parties, Sodal Gatherings or Meetings
(Plea bargaining is allowed from Section 13 of Republic Act No. 9165 to Section 11, paragraph 3 of the same statute where the quantity of dangerous drugs Involved is less than 5 grams (in cases of "shabu", opium, cocaine, etc.) and less than 300 grams of marijuana. If the quantity of dangerous drugs Involved exceeds the above amounts, plea bargaining is prohibited.) |
Maximum Penalties provided under Section 11regardless of quantity or purity |
Section 11, par. 3 Possession of Dangerous Drugs
(Plea bargaining is allowed where the quantity of "shabu", opium, morphine, heroin, cocaine, et al is less than 5 grams and marijuana is less than 300grams. If the quantity of dangerous drugs involved exceeds the above quantities, no plea bargaining is allowed.) |
12 yrs & 1 day to 20 yrs and Fine from Php 300k to Php 400k |
| Section 14 Possession of Equipment, Apparatus & Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings |
Maximum Penalty provided under Section 12 |
Section 15 Use of Dangerous Drugs |
6 mos. Rehab for 1st offense; 6 yrs & 1 day to 12 yrs & fine from Php 50k to Php 200k for 2nd offense |
| Section 15 Use of Dangerous Drugs |
6 mos. Rehab for 1st offense; 6 yrs & 1 day to 12 yrs & fine from Php 50k to Php 200k for 2nd offense |
No Plea Bargain |
|
| Section 16, par. 1 Cultivating or Culture of Plants Classified as Dangerous Drugs or are Sources thereof |
Life Imprisonment to Death and Fine from Php 500k to Php 10M |
No Plea Bargain |
|
| Section 16, par. 3 Acting as Financier |
Maximum Penalty |
No Plea Bargain Allowed |
|
| Section 16, par. 4 Acting as "Protector/Coddler" |
12 yrs & 1 day to 20 yrs and Fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 17 Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors & Essential Chemicals |
1 yr. and 1 day to 6 yrs, and Fine from Php 10k to Php 50k |
No Plea Bargain |
|
| Section 18 Unnecessary Prescription of Dangerous Drugs |
12 yrs & 1 day to 20 yrs & Fine from Php 100k to Php 500k with revocation of license of practitioner |
No Plea Bargain |
|
| Section 19 Unlawful Prescription of Dangerous Drugs |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 26 Attempt or Conspiracy |
Penalty Provided in Previous Sections for Importation, Sale, Maintenance of Den, Manufacture & Cultivation of Dangerous Drugs |
No Plea Bargain Allowed |
|
| Section 27 Criminal Liability of Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for Confiscated Dangerous Drugs, etc. |
Life Imprisonment to Death & Fine from Php 500k to Php 10M |
No Plea Bargain Allowed |
|
| Section 29 Planting of Evidence |
Death |
No Plea Bargain Allowed |
|
| Section 32 Liability of Person Violating any Regulation Issued by the Dangerous Drugs Board |
6 mos. & 1 day to 4 yrs and fine, from Php 10k to Php 50k |
No Plea Bargain |
|
| Section 37 Issuance of False or Fraudulent Drug Test Results |
6 yrs and 1 day to 12 yrs & fine from Php 100k to Php 500k |
No Plea Bargain |
|
| Section 72 Liability of Person who violates the Confidentiality of Records (of drug dependent under voluntary submission program) |
6 mos. & 1 day to 6 yrs and fine, from Php 1k to Php 6k |
No Plea Bargain |
|
| Section 91, par. 1 Responsibility & Liability of Law Enforcement Agencies and other Government Officials and Employees in Testifying as Prosecution Witnesses in Dangerous Drugs Cases |
12 yrs and 1 day to 20 yrs and fine of not less than Php 500k |
Section 91, par. 2 Liability of Immediate Superior if he failed to exert reasonable effort to present witness to court |
2 mos and 1 day but not more than 6 yrs and fine of not less that Php 10k but not more than Php 50k |
| Section 91, par. 2 Liability of Immediate Superior if he filed to exert reasonable effort to present witness to court |
2 mos and 1 day but not more than 6 yrs and fine of not less that Php 10k but not more than Php 50k |
No Plea Bargain |
|
| Section 91, par. 3 Failure of Immediate Superior to Inform Court of Transfer or Re-Assignment of Accused Law Enforcement Agent |
2 mos and 1 day but not more than 6 yrs and fine of not less that Php 10k but not more than Php 50k |
No Plea Bargain |
|
| Section 92 Delay and Bungling in the Prosecution of Drug Cases |
12 yrs and 1 day to 20 yrs without prejudice to further prosecution under the RPC |
No Plea Bargain Allowed |
|
Thus, Sayre filed a Motion for Approval of Plea-Bargaining Proposal with Modification,7 citing A.M. No. 18-03-16-SC. To this, the prosecution filed a Comment and Counter-Proposal,8 citing Department of Justice Circular No. 27.
The proposal and counter-proposal are summarized as follows:
| CRIMINAL CASE NO. |
OFFENSE CHARGED
(Republic Act No. 9165) |
ACCUSED'S PROPOSAL |
PROSECUTION'S COUNTER-PROPOSAL |
| SECTION |
PENALTY |
SECTION |
PENALTY |
SECTION |
PENALTY |
CRC 416-2017
(0.1029 gram of shabu) |
Sec. 5
Illegal Sale of Dangerous Drugs |
Life Imprisonment and a fine ranging from P500,000.00 to P10,000,000.00 |
Section 12.
Possession of Paraphernalia for dangerous drugs |
Imprisonment of 6 months and 1 day to 4 years |
Sec. 11.
Illegal Possession of Dangerous Drugs |
Indeterminate Penalty of 12 years and 1 day to 14 years and 8 months and a fine of P300,000.00 |
CRC 417-2017
(0.0870 gram, 0.06543 gram, .0545 gram, and 0.0531 gram of shabu) |
Sec.11.
Illegal Possession of Dangerous Drugs |
12 years and 1 day to 20 years and a fine ranging from P300,000.00 to P400,000.00 |
Section 12.
Possession of Paraphernalia for dangerous drugs |
Imprisonment of 6 months and 1 day to 4 years |
Section 12.
Possession of Paraphernalia for dangerous drugs |
Indeterminate Penalty of 6 months and 1 day to 4 years and a fine of P25,000.00 |
| CRC 418-2017 |
Section 12.
Possession of Paraphernalia for dangerous drugs |
Imprisonment of 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00 |
Sec. 15
Use of Dangerous Drugs |
Compulsory 6-month rehabilitation |
Plead to the crime as charged |
Indeterminate Penalty of 6 months and 1 day to 4 years and a fine of P25,000.00 |
On October 11, 2018, the Regional Trial Court of Panabo City, Branch 34, issued an Order9 stating that the prosecution and Sayre agreed to an indeterminate penalty of six (6) months and one (1) day to four (4) years for Criminal Case Nos. CRC 417-2017 and CRC 418-2017. However, since the parties could not agree on the plea bargain for Criminal Case No. CRC 416-2017, the trial court reset the pre-trial.10
On November 5, 2018, Sayre filed an Extremely Urgent Motion.11 He prayed that, in view of A.M. No. 18-03-16-SC and OCA Circular No. 90-2018, he be allowed to plead to the lower offense of violating Section 12, for the possession of drug paraphernalia, in Criminal Case No. CRC 416-2017, in which he was charged with illegal sale.12
In its Comment (With Opposition),13 the prosecution agreed with Sayre's proposal to lower the offenses in Criminal Case Nos. CRC 417-2017 and CRC 418-2017 to violation of Sections 12 and 15, respectively. It, however, rejected his proposal in Criminal Case No. CRC 416-2017, on the ground that "[a]ny plea bargaining outside [Department of Justice Circular No. 027 is not acceptable[.]"14 The prosecution maintained that it could only consent to the lower penalty of violation of Section 11:
| CRIMINAL CASE NO. |
OFFENSE CHARGED
(Republic Act No. 9165) |
ACCUSED'S PROPOSAL |
PROSECUTION'S COUNTER-PROPOSAL |
| SECTION |
PENALTY |
SECTION |
PENALTY |
SECTION |
PENALTY |
CRC 416-2017
(0.1029 grams of shabu) |
Sec. 5
Illegal Sale of Dangerous Drugs |
Life Imprisonment and a fine ranging from P500,000.00 to P10,000,000.00 |
Section 12.
Possession of Paraphernalia for dangerous drugs |
Imprisonment of 6 months and 1 day to 4 years |
Sec. 11.
Illegal Possession of Dangerous Drugs |
Indeterminate Penalty of 12 years and 1 day to 14 years and 8 months and a fine of P300,000.00 |
Since the parties failed to reach an agreement in Criminal Case No. CRC 416-2017, the trial court issued an Order15 on December 6, 2018 denying Sayre's Motion to Plea Bargain and setting the case for pre-trial.
Sayre filed an Urgent Motion for Reconsideration,16 urging the trial court to follow A.M. No. 18-03-16-SC and OCA Circular No. 90-2018, instead of Department of Justice Circular No. 027. The trial court, however, denied the Urgent Motion in its January 23, 2019 Order.17
Hence, Sayre filed a Petition for Certiorari and Prohibition18 before this Court, praying that Depm1ment of Justice Circular No. 27 be declared unconstitutional for contravening OCA Circular No. 90-2018.
Petitioner argues that Depm1ment of Justice Circular No. 27 "effectively repealed, altered[,] or modified OCA Circular No. 90-2018, implementing A.M. No. 18-03-16-SC, a procedural rules (sic) promulgated by the Supreme Court En Banc[.]"19 He asserts that "it trespassed upon the Supreme Court's prerogative and exclusive power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts."20 He contends that the trial court gravely abused its discretion when it failed to apply Office of the Court Administrator Circular No. 90-2018, which he claims is "now deemed incorporated in Rule 118"21 of the Rules of Court.22
The Office of the Solicitor General counters that petitioner's direct resort to this Court was improper and violated the doctrine of hierarchy of courts.23 It argues that Department of Justice Circular No. 27 was an exercise of the Department of Justice's quasi-legislative power and enjoys the presumption of validity.24 It contends that the Department of Justice, "as the executive arm of the government mandated to investigate the commission of crimes, prosecute offenders[,] and administer the probation and correction system, has the authority to issue [Department of Justice] Circular No. 27, it being a matter concerning the prosecution of [the] offense."25 It asserts that the questioned Circular "essentially limits the discretion of the prosecutors to consent to the offer of plea bargaining, that is, to only give their consent when it is within the allowable range provided in [Department of Justice] Circular No. 27."26
I agree with the ponente that Department of Justice Circular No. 27 does not violate the rule-making power of this Court. A.M. No. 18-03-16-SC and Office of the Court Administrator Circular No. 90-2018 are not part of the Rules of Court. They are, like Department of Justice Circular No. 27, internal guidelines for plea bargaining in drug offenses. Mere conflicting provisions among these issuances will not necessarily render the executive issuance unconstitutional.
A prosecutor's duty is to prosecute the proper offense based on the sufficiency of the evidence. Consent to a plea of guilty to a lower offense is solely within prosecutorial discretion. Courts do not have the discretion to mandate what offense the prosecution should prosecute.
I
People v. Villarama, Jr.27 defines plea bargaining as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval."28 It is usually done by the accused pleading to a lesser offense. This process is expressly provided in Rule 116, Section 2 of the Rules of Court:
SECTION 2. Plea of guilty to a lesser offense. - At arraignment, the accused with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.
A plain reading of this provision shows only one (1) part of the plea bargaining process: the plea of the lesser offense before the court. This presupposes that the courts only participate in the plea bargaining process once the accused has presented his or her offer and the prosecution and the private offended party has consented to the offer.
Rule 118, Section 1(a) likewise mandates the courts to consider plea bargaining during pre-trial:
SECTION 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:
(a) plea bargaining[.]
The mandate to consider plea bargaining after arraignment does not necessarily mean that the accused must always plead guilty to the lesser offense in all criminal cases. It simply means that if the accused and the prosecution come to court with a plea bargain deal during pre-trial, the court must consider the plea bargain deal.
There is, thus, a part of the plea bargaining process that is solely within the realm of prosecutorial discretion.
This point is made even more evident by how Rule 116, Section 2 is stated. The provision's first sentence states the general rule: a plea to a lesser offense must be made before arraignment. The second sentence contains an exception: the accused may be allowed to withdraw an earlier plea of not guilty for a plea of guilty. after arraignment but before trial.
Rule 116, Section 229 of the 1985 Rules of Criminal Procedure had previously allowed plea bargaining at any stage of the prosecution. In Villarama, Jr., the accused pleaded to a lesser offense after the prosecution had already rested its case. This Court stated that the trial court's discretion in accepting the plea must be based on the sufficiency of the prosecution's evidence:
In the case at bar, the private respondent (accused) moved to plead guilty to a lesser offense after the prosecution had already rested its case. In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan, We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. In his concurring opinion in People v. Parohinog, then Justice Antonio Barreda explained clearly and tersely the rationale of the law:
... (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining.30 (Emphasis in the original, citations omitted)
Indeed, a guilty plea "for a lighter offense than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused";31 rather, it should be allowed based on the sufficiency of the prosecution's evidence.
In Daan v. Sandiganbayan,32 however, the plea to a lesser offense was made by the accused at pre-trial, before the prosecution presented its evidence. This Court cautioned that the court's exercise of discretion should not amount to grave abuse:
As regards plea bargaining during the pre-trial stage, as. in the present case, the trial court's exercise of its discretion should neither be arbitrary nor should it amount to a capricious and whimsical exercise of discretion. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law.33
Nonetheless, in that case, this Court observed that the court's exercise of discretion to allow the plea to a lesser offense was supported by the favorable recommendation of the Office of the Special Prosecutor to approve the motion to plea bargain.34
The exercise of the court's discretion in allowing the plea to a lesser offense depends on whether the prosecution actually consents. In other words, the Rules of Court does not state that the prosecution must consent to a plea deal, it merely tasks the courts to exercise its discretion after the prosecution consents to the plea deal.
II
Estipona has since settled that plea bargaining is a rule of procedure within the scope of this Court's rule-making power under the Constitution.35 In view of the principle of separation of powers, the two (2) other branches of government cannot enact laws or issue orders that transgress upon this procedural rule.
A.M. No. 18-03-06-SC is, however, not a procedural rule. It is a mere framework to guide parties to what may be considered acceptable plea bargains in drug offenses. Nothing in it mandates that the prosecution, the accused, or the courts must strictly comply with its provisions.
The list under "Acceptable Plea Bargain" of A.M. No. 18-03-06-SC is only recommendatory. Rule 116, Section 2 of the Rules of Court gives the court the discretion to allow the accused to plead guilty to a lesser offense. Rule 118, Section 1(a) tasks courts to consider plea bargaining during pretrial. The Rules of Court, however, does not mandate the prosecution to consent to the plea if it falls within those listed under the "Acceptable Plea Bargain." A.M. No. 18-03-06-SC was issued as a guideline to the courts as to what plea bargains it may allow in drugs cases. It is by no means a mandate to the prosecution on what offense it should prosecute.
Even Estipona emphasizes judicial deference m the exercise of prosecutorial discretion in the plea bargaining process:
Under the present Rules, the acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended party and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense charged. The reason for this is that the prosecutor has full control of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the evidence on hand can sustain.
[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge. Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to examine the decision whether to prosecute."36
Department of Justice Circular No. 27, thus, cannot be considered unconstitutional for having "repealed, altered[,] or modified"37 the provisions of A.M. No. 18-03-06-SC. It was issued to guide the prosecution as to whether it should give its consent to a plea bargain. Control over the prosecution of criminal offenses is not within judicial discretion. Just as legislative enactments cannot run counter to this Court's procedural rules, so too should judicial interference not be allowed in prosecutorial decisions.
III
A.M. No. 18-03-06-SC and Department of Justice Circular No. 27 are not necessarily contradictory in the acceptable plea bargain for violation of Section 5 of Republic Act No. 9165. For reference:
| REPUBLIC ACT NO. 9165 |
A.M. NO. 18-03-06-SC |
DOJ CIRCULAR NO. 27 |
| OFFENSE |
PENALTY |
QUANTITY OF THE ILLEGAL DRUG |
ACCEPTABLE PLEA BARGAIN |
PENALTY |
QUANTITY OF THE ILLEGAL DRUG |
ACCEPTABLE PLEA BARGAIN |
PENALTY |
| Sec. 5 Illegal Sale of Dangerous Drugs |
Life Imprisonment and a fine ranging from P500,000.00 to P10,000,000.00 |
0.01 gram to 0.99 grams of shabu |
Section 12. Possession of Paraphernalia for dangerous drugs |
6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00 |
Less than 5 grams of shabu and less than300 grams of marijuana |
Sec. 11 Illegal Possession of Dangerous Drugs |
12 years and 1 day to 20 years and a fine of P200,000.00 to P400,000.00 |
|
|
1.00 gram and above of shabu |
No plea bargaining allowed |
|
|
|
|
|
0.01 gram to 9.99 gramsof marijuana |
Section 12. Possession of Paraphernalia for dangerous drugs |
6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00 |
|
|
|
|
|
10.00 grams of marijuana |
No plea bargaining allowed |
|
|
|
A.M. No. 18-03-06-SC provides for a more lenient plea of violation of Section 12 for the sale of up to 0.99 gram of shabu, or up to 9.99 grams of marijuana; for the sale of 1.00 gram or more of shabu, or of 10.00 grams or more of marijuana, plea bargain is no longer allowed.
Department of Justice Circular No. 27, however, allows for a plea of violation of Section 11 for those charged with the sale of less than 5.00 grams of shabu or less than 300.00 grams of marijuana. This means that prosecutors may still consent to plea bargains for the sale of 1.00 gram to 4.99 grams of shabu or of 10.00 grams to 299.99 grams of marijuana, even though courts are cautioned not to allow any plea bargain.
Thus, for violation of sale of more than 1.00 gram to 4.99 grams of shabu and 5.00 grams to 299.99 grams of marijuana, Department of Justice Circular No. 27 is actually more beneficial to the accused.
I am, however, aware of the reality that most cases that come before this Court involve sales of less than 1.00 gram of shabu or less than 5.00 grams of marijuana. In People v. Holgado:38
It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial "big fish." We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels.39
This Court had the same observation in Lescano v. People,40 which involved the sale of 1.4 grams of marijuana.
It is unfortunate that Department of Justice Circular No. 27 recommends a plea of violation of Section 11 (illegal possession) for these offenses, "in view of the intensified campaign of the government against illegal drugs."41 While drugs do pose a menace to our society, government resources should be focused more on prosecuting high-value targets, who are the actual sources of the drug menace, rather than small-time pushers. Prosecutors should bear in mind that the declared policy of the law is not to punish drug offenders but "to provide effective mechanisms or measures to re-integrate into society individuals who have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation."42
This Court has likewise adopted a much stricter stance for compliance with the requirements of Section 21 of Republic Act No. 9165, as amended,43 in cases involving the sale of less than 1.00 gram of shabu or less than 5.00 grams of marijuana.44 This has resulted in a number of acquittals in recent years. The prosecution must now be ready with air-tight evidence and perfectly consistent testimonies to secure a conviction for sales of less than 1.00 gram of shabu or less than 5.00 grams of marijuana.
Be that as it may, the matter of consent to a plea of guilty to a lesser penalty is solely within the prosecution's discretion, with which courts should not interfere absent any grave abuse.
Accordingly, I vote to DISMISS the Petition.
Footnotes
1 Rollo, p. 32.
2 Id. at 33.
3 Id. at 34.
4 816 Phil. 789 (2017) [Per J. Peralta, En Banc].
5 Republic Act No. 9165 (2002), sec. 23 provided:
SECTION 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.
6 Rollo, pp. 55-56.
7 Rollo, pp. 55-59.
8 Id. at 60-61.
9 Id. at 62-63. The Order was penned by Presiding Judge Dax Gonzaga Xenos of Branch 34, Regional Trial Court of Panabo City.
10 Id. at 62.
11 Id. at 64-67.
12 Id. at 64-65.
13 Id. at 68-69.
14 Id. at 68.
15 Id. at 70-71. The Order was penned by Presiding Judge Dax Gonzaga Xenos of Branch 34, Regional Trial Court of Panabo City.
16 Id. at 72-74.
17 Id. at 77. The Order was penned by Presiding Judge Dax Gonzaga Xenos of Branch 34, Regional Trial Court of Panabo City.
18 Id. at 3-31.
19 Id. at 16.
20 Id. at 19.
21 Id. at 23.
22 Id. at 23-24.
23 Id. at 119-121.
24 Id. at 122-125.
25 Id. at 126.
26 Id. at 127.
27 285 Phil. 723 (1992) [Per J. Medialdea, First Division].
28 Id. at 730 citing Black 's Law Dictionary, 5th Ed. (1979), p. 1037.
29 RULES OF COURT (1985), Rule 116, sec. 2 provided:
SECTION 2. Plea of guilty to a lesser offense. - The accused, with the consent of the offended patty and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary. A conviction under this plea, shall be equivalent to a conviction of the offense charged for purposes of double jeopardy.
30 People v. Villarama, Jr., 285 Phil. 723, 730-731 (1992) [Per J. Medialdea, First Division] citing People v. Kayanan, 172 Phil. 728 (1978) [Per J. Barredo, En Banc]; and J. Barredo, Concurring Opinion in People v. Parohinog, 185 Phil. 266 (1980) [Per J. Abad Santos, Second Division].
31 Daan v. Sandiganbayan, 573 Phil. 368, 377 (2008) [Per J. Austria-Martinez, Third Division] citing People v. Kayanan, 172 Phil. 728 (1978) [Per J. Barredo, En Banc].
32 573 Phil. 638 (2008) [Per J. Austria-Mattinez, Third Division].
33 Id. at 378 citing People v. Court of Appeals, 545 Phil. 278 (2007) [Per J. Quisumbing, Second Division].
34 Id. at 379.
35 CONST., art. VIII , sec. 5 states:
SECTION 5. The Supreme Court shall have the following powers:
....
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
36 Estipona v. Hon. Lobrigo, 816 Phil. 789, 814-815 [Per J. Peralta, En Banc] citing People v. Villarama, Jr., 285 Phil. 723, 732 (1992) [Per J. Medialdea, First Division] and Newton v. Rumery, 480 U.S. 386, 396 (1987).
37 Rollo, p. 16.
38 741 Phil. 78 (2014) [Per J. Leonen, Third Division].
39 Id. at 100.
40 778 Phil. 460 (2016) [Per J. Leonen, Second Division].
41 Department of Justice Circular No. 27 (2018).
42 Republic Act. No. 9165 (2002), sec. 2.
43 Republic Act. No. 10640 (2014).
44 See People v. Lim , G.R. No. 23 1989, September 4, 2018, [Per J. Peralta, En Banc].
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