PETER QUIEL E. VEGA1-WIGMORE

ARNEL COLINARES, Petitioner,vs.

PEOPLE OF THE PHILIPPINES, Respondent.G.R. No. 182748 December 13, 2011

FACTS:

June 25, 2000, around 7:00PM, Rufino and Jesus went out to buy some cigarette. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious as Jesus fled.

Ananias testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home after initial treatment.

On the other hand, Arnel claimed self-defense. He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal Police Station. On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation. In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court. Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction.

ISSUE:

Whether or not Arnel has the right to apply for probation notwithstanding the perfection of his appeal. HELD:

The Court finds Arnel liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC.

It is true that under the probation law the accused who appeals “from the judgment of conviction” is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court. The Probation Law requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement “outlaws the element of speculation on the part of the accused—to wager on the result of his appeal—that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the appellate court’s affirmance of his conviction.” Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for probation. Arnel was convicted of a wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose of the probation law. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation.

LEGAL ESSAY:

“To get one thing that we like, we usually have to give up another thing that we like. Making decisions requires trading off one goal against another.” - Greg Mankiw

Probation Law of 1976 (P.D. No. 968, as amended) has its goal to establish a more enlightened and humane correctional system that will promote the reformation of offenders. Probation, as the law defines it, is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of probation officer.

Probation is not automatically granted to any convicted offender, Section 4 of P.D. 968 provides the rule in granting probation:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable. (Emphasis added)

The law explicitly gives the offender the choice whether to appeal the decision rendered by the trial court or to apply for a probation. Choices are mutually exclusive, choosing one is considered a waiver of the other. In the word of Justice Peralta, in his dissenting opinion, it reads:

Probation is not a right granted to a convicted offender. Probation is a special privilege granted by the State to a penitent qualified offender, who does not possess the disqualifications under Section 9 of Presidential Decree (P.D.) No. 968, otherwise known as the Probation Law of 1976. Likewise, the Probation Law is not a penal law for it to be liberally construed to favor the accused.

In the American law paradigm, probation is considered as an act of clemency and grace, not a matter of right. It is a privilege granted by the State, not a right to which a criminal defendant is entitled. In the recent case of City of Aberdeen v. Regan, it was pronounced that:

The granting of a deferred sentence and probation, following a plea or verdict of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or clemency granted to the deserving.

I agree with the dissenting opinion of Justice Peralta. In the case of Arnel Colinares, he perfected an appeal. The mere act of perfecting an appeal disqualifies him from availing the grace given by Probation Law. The ruling of the majority of the justices, although reasonable, for me is a violation of the basic concept of legal construction that when the law is clear, it has to be applied with no further interpretations. Section 4 of Probation law, in my opinion, has to be applied strictly, thus, disqualifying Arnel Colinares.

Looking forward to the future effect, the decision made by the Supreme Court in this case will flood the dockets of the appellate courts and Supreme Court. Disqualified offenders will take chance by appealing the decision made by the trial court on the ground that they be convicted of a different offense with a penalty falling within the range prescribe by the probation law. If such will

be the case, this will defeat the essence of Probation as a privilege. Any offender convicted and disqualified by law for a probation will now have the advantage of having the best of both worlds, appealing and applying for probation.