REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN QUEZON CITY SPECIAL THIRD DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff, Criminal Cases Nos. SB- 18-CRM-024S to 0246 For: Violation of Section 3 (e) of Republic Act No. 3019 and Malversation of Public Funds - versus- Present: Accused. CABOTAJE-TANG, P.J., Chairperson, FERNANDEZ, B., J. and FERNANDEZ, S.J., J.l ROGER CABALES CHIO, et al., Promulgated: ~A@V 7YJ.Yrl#l J{-------------------------------------------------------------------------------------J{ RESOLUTION CABOTAJE-TANG, P.J.: For resolution is accused Roger Cabales Chio's "Motion to Dismiss/ Quash the Information [with prayer to suspend marking of exhibits, arraignment and pre-trial, and submission of pre-trial briefs and judicial affidavits]" dated September 25,2018. 2 In his aforesaid motion, accused-movant Chio prays that [1] the marking of exhibits and stipulation of facts before the clerk of a 1 Sitting as a special member of the Third Division as per Administrative Order No. 262-2018 dated April 3/10' 2018. 2 pp. 644-660, Record
Transcript
REPUBLICOF THE PHILIPPINESSANDIGANBAYAN
QUEZONCITY
SPECIAL THIRD DIVISION
PEOPLE OF THEPHILIPPINES,
Plaintiff,
Criminal Cases Nos. SB-18-CRM-024S to 0246For: Violation of Section 3 (e) of
Republic Act No. 3019 andMalversation of Public Funds
- versus-Present:
Accused.
CABOTAJE-TANG, P.J.,Chairperson,FERNANDEZ, B., J. andFERNANDEZ, S.J., J.l
For resolution is accused Roger Cabales Chio's "Motion toDismiss/ Quash the Information [with prayer to suspend markingof exhibits, arraignment and pre-trial, and submission of pre-trialbriefs and judicial affidavits]" dated September 25,2018.2
In his aforesaid motion, accused-movant Chio prays that [1]the marking of exhibits and stipulation of facts before the clerk ofa1 Sitting as a special member of the Third Division as per Administrative Order No. 262-2018 dated April 3/10'2018.2 pp. 644-660, Record
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court, the arraignment and the pre-trial and the submission ofpre-trial briefs and judicial affidavits in these cases be held inabeyance until the resolution of the present motion; and, [2] theherein cases be dismissed on the ground of a violation of hisconstitutional right to speedy disposition of cases.>
The accused-movant bewails a violation of his constitutionalright to speedy disposition of cases against his factual narrativeof the proceedings before the Office of the Ombudsman, to wit:
DATE INCIDENT LENGTHOF TIMELAPSED
24 October 2012 Date of signmg of the Complaint by -Associate Graft Investigation Officer 11Gerhard G. Basco
5 November 2012 Date of notarization of the Complaint before 12 daysAssistant Ombudsman, FIO I, Joselito P.Fangon
5 March 20134 Complaint was filed with the Ombudsman 120 days7 June 2017 Date of the Resolution issued by the Special 1556
Panel on Task Force Abono Cases of the daysOmbudsman
31 July 2017 Date of Approval of the Resolution by 55 daysOmbudsman Conchita Carpio Morales
9 February 2018 Date of the Informations against the 194 daysaccused
6 April 2018 Receipt by the Honorable Court of the 57 daysInformations
1991days or
TOTAL morethan 5years5
3 p. 654, Id4 Footnote omitted5 Emphasis supplied by the accused-movant
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According to him, the complaint in these cases was filed onMarch 5, 2013. However, the Informations against him were filedonly on April 6, 2018, or after more than five (5)years from thefiling of the complaint.6 He alleges that the questionedtransactions which gave rise to the filing of the complaint againsthim and his eo-respondents occurred fourteen (14) years ago;that the Office of the Ombudsman itself affirmed that theCommission on Audit (COA)found the alleged irregularities asearly as 2005; and, that the Office of the Ombudsman failed totake action for seven (7) years." Moreover, the same accused-movant argues that the records of these cases are neithervoluminous nor are the issues involved novel or complex.s and,that the Office of the Ombudsman failed to provide any soundreason why the preliminary investigation in these cases wasprotracted for five (5)years.?
To further support his claim of inordinate delay, accused-movant Chio invokes the cases of Tatad v. Sandiganbayan10
and Duterte v. Sandiganbayan,ll wherein the Supreme Courtdeclared that the delay of three (3) and four (4) years,respectively, in the conduct of the preliminary investigationbefore the Officeof the Ombudsman constituted a violation of theaccused's right to speedy disposition of cases.P He also relies onthe case of Coscolluela v. Sandiganbayan13 and submits thatthe right to speedy disposition of cases may be invoked as aground for dismissal of a case at any period, such that it may bevalidly invoked before, during or even after trial. 14
Accused-movant Chio further avers that he was, andcontinues to be, prejudiced by the delay in the present casesbecause the said delay brought him "distress, embarrassment,
6 p. 645, Id7 p. 647, Id8 p. 652, Id9 p. 652, Id10159 seRA 70 (1988)11 289 seRA 721 (1998)12 pp. 647-648, Id13 701 seRA 188 (2013)14 p. 652, Id
Cl
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harassment and oppression; "15 he is currently unable to gatherevidence in support of his defense; he is constrained to rely onthe evidence submitted by the complainant; 16 his possiblewitnesses are no longer connected with the Department ofAgriculture, Regional Field Unit XI (DA-RFU-XI)and their abilityto recall the events in these cases may have already beencurtailed."? and, he is already at an advanced age and he will nothave the same physical and mental strength to go through trialand ably defend himself.18
In its "Opposition (ToAccused Roger Cabales Chic's Motion toDismiss/ to Quash the Information with Prayer to SuspendMarking of Exhibits, Arraignment and Pre-Trial, and Submission ofPre-Trial Briefs and Judicial Affidavits)" dated October 8, 2018,19the prosecution contends that pursuant to the ruling of theSupreme Court in the recent case of Cagang v.Sandiganbayan,20 the reckoning point in the determination ofthe existence of inordinate delay should be from the date of thefiling of the formal complaint with the Office of theOmbudsman.>! It explains the alleged delay in the preliminaryinvestigation of these cases, viz:
15 p. 654, Id16 p. 649, Id17 p. 654, Id18 p. 653, Id19 pp. 683-688, Id20 G.R. No. 206438, July 31, 201821 p. 684, Id
6. Based on the records, the Office of the Ombudsmanacted on the Complaint, on April 10,2013, it directedthe respondents to file their respective counter-affidavits. While some respondents had seasonablysubmitted their counter-affidavits, respondentErnesto Miro, however, filed his counter-affidavit onlyon June 27, 2016 and it was only then that theComplaint could be finally resolved. Thus, countedfrom June 27, 2016, it took the Office of theOmbudsman only less than a year to draft aresolution and one (1) year and four (4) days tor:
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terminate the preliminary investigation (uponapproval by the Ombudsman on July 31, 2017).Such a span of time can hardly be considered ascapricious or oppressive considering that there weretwenty-five (25) respondents and several counter-affidavits that needed to be thoroughly examined.w
Furthermore, the prosecution submits that the complaintagainst the accused-movant involved numerous respondents andviolations which needed to be "meticulously scrutinized andverified. "23 According to the prosecution, these violationsincluded, among others, "rigged public bidding, absence of a pre-procurement conference, absence of invitations to apply foreligibility and to bid, inadequate eligibility check, questionabledates of procurement activities and forms, non-compliance withCOA circulars, split disbursement vouchers and incompletedocumentation on the distribution of farm inputs. "24
The prosecution likewise avers that the reason for thealleged delay cannot be solely attributed to the Office of theOmbudsman due to the fact that the last counter-affidavit wassubmitted only on June 27, 2016, and several extensions of timeto file counter-affidavit were secured by the respondents whichalso contributed to the delay;25that it had timely directed therespondents to file their respective couruer-affidauitsi= and, thatthe cases relied upon by the accused-movant in support of hismotion are inapplicable to the present cases due to thedifferences in their factual milieu.P?
Finally, the prosecution asserts that the accused-movantshould have raised the issue of inordinate delay at the earliestopportunity, or during the preliminary investigation, by filing amotion for early resolution. Relying once again on the case of
22 p. 684, Id23 p. 685, Id24 p. 685, Id25 p. 685, Id26 p. 685, Id27 pp. 685-686, Id
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Cagang, the prosecution argues that the right to speedydisposition of cases must be timely raised; otherwise, therespondent is deemed to have waived such right.s"
THE RULING OF THE COURT
The Court finds the subject motion unmeritorious
To begin with, in its Resolution promulgated on October 18,2018, the Court had squarely passed upon the issue ofinordinate delay in these cases which was raised by accusedRomulo S. Palcon, Godofredo A. Ramos, Corazon M. Ebero,Mariflor Sanchez-Garcia, Gilda Cordero-Panal and Rita R. Retino.Therein, the Court carefully examined the facts andcircumstances surrounding the preliminary investigation of thesecases before the Officeof the Ombudsman and applied the four-fold test prescribed by the Supreme Court.P? After doing so, theCourt held that there was no inordinate delay during thepreliminary investigation of these cases before the Office of theOmbudsman; hence, the said accused's constitutional right tospeedy disposition of cases was not violated, to wit:
It is jurisprudentially settled that although theConstitution guarantees the right to speedy dispositionof cases, such speedy disposition is a relative andflexible concept. The determination of the existence ofinordinate delay is not through mere mathematicalreckoning but through the examination of the facts andcircumstances surrounding each case.:'? Thus, theSupreme Court has constantly emphasized the need for
.. /?~29 Cagang v. Sandiganbayan (Fifth Division), G.R. No. 206438 and 206458, July 31, 2018; See also People v.Sandiganbayan (Fourth Division), G.R. No. 232197-98, April 16, 2018; Remulla v. Sandiganbayan, G.R. No.218040, April 17, 2017; Ombudsman v. Jurado, 561 SeRA 135 (2008), Corpuz v. Sandiganbayan 442 seRA 294(2004), Dela Peiia v. Sandiganbayan, 360 seRA 478 (2001)30 Footnote omitted
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courts dealing with "speedy disposition cases," toapproach the said cases on an ad hoc basis and weigh
. the conduct of both the prosecution and the accusedvis-a-vis the [1] length of delay; [2] reason for the delay;[3] accused's assertion or non-assertion of his/her rightto speedy trial; and, [4] prejudice caused to the accusedresulting from the delay.>t Notably, none of the above-mentioned elements is either a necessary or sufficientcondition to hold the existence of inordinate delay.VStated differently, the said factors must be consideredand related together with other relevant circumstancesand courts must still engage in a difficult and sensitivebalancing process.e-
The records of these cases reveal that thepreliminary investigation of these cases lasted for four(4) years and two (2) months, counted from the date theFIO filed its formal complaint with the Office of theOmbudsman on March 5, 2013,34 until the issuance bythe Office of the Ombudsman of its Resolution findingprobable cause to indict the accused in these cases ofthe crimes herein charged on June 7, 2017.35
Considering that the period in the resolution of thepreliminary investigation before the Office of theOmbudsman was protracted, jurisprudence instructsthat it is now incumbent upon the prosecution todemonstrate that the said delay was not inordinate. 36
In these cases, accused-rnovants Ebero, Garcia,Panal and Palcon submitted their counter-affidavits onJune 10,2013, June 19,2013, June 28,2013 and July3, 2013, respectively. On January 15, 2014, accused-movant Panal submitted a supplemental counter-affidavit. Notably, respondent Ernesto R. Miro only filedhis counter-affidavit on June 27,2016, or after three (3)
No. 218040, April 17, 2017 ?732 Id
33 Id 434 p. 13, Record35 p. 3D, Id36 See People v. Sandiganbayan (Fourth Division), G.R. No. 232197-98, April 16, 2018; Remulla v.Sandiganbayan, G.R. No. 218040, April 17, 2017
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years and one (1) month from the date when therespondents were ordered to file their counter-affidavits.On June 7, 2017, or within one (1) year from the filingof the last counter-affidavit, the Office of theOmbudsman found the existence of probable causeagainst herein accused-rnovants.
Plainly, the timeline of events submitted by theprosecution shows that the Office of the Ombudsmantook continued actions to resolve the cases against therespondents (now accused-rnovants] after the formalcomplaint was filed against them by the FIO. Also, theamount of time that it spent in the drafting of itsResolution finding probable cause against the accused-movants cannot be considered as unreasonable,oppressive, vexatious and inordinate taking intoconsideration the number of respondents involved inthese cases (each of whom was given the opportunity toanswer the allegations against him/her); the motions forextension of time to file counter-affidavit filed by some ofthe respondents; the period during which the complaint,together with its attachments was examined andreviewed; the time poured into the research of pertinentlaws and applicable jurisprudence; and, the levels ofreview that the case had to go through.
Moreover, the motions for reconsideration filed bythe respondents were immediately resolved. While theremay have been delay in the disposition of the casebefore the Office of the Ombudsman, the Court does notfind the said delay to be attributable to the Office of theOmbudsman. It was due to the belated compliance ofrespondent Miro with the order of the Office of theOmbudsman for him and his eo-respondents below tofile their counter -affidavits '/7
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37 pp. 12-14, Resolution
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The Court observes that it is only now, or after accused-movant Chio has been scheduled for arraignment.w that he isminded to invoke his constitutional right to speedy disposition ofcases. A review of the records of these cases reveals that he didnot file his counter-affidavit with the Office of the Ombudsman.Likewise, he failed to seek a reconsideration of the adverseResolution dated June 7,' 2017, of the Office of the Ombudsmanwhich found probable cause against him and his eo-accused ofthe crime of malversation of public funds under Article 217 of theRevised Penal Code and for violation of Section 3 (e) of RepublicAct (R.A.)No. 3019.
In Dela Pefta v. Sandiganbayan,39 the Supreme Court enbanc held:
38 p. 637, Id39360 scax 478 (2001)40 Footnote omitted
Moreover, it is worthy to note that it was only on21 December 1999, after the case was set forarraignment, that petitioners raised the issue of thedelay in the conduct of the preliminary investigation. Asstated by them in their Motion to Quash/Dismiss,"[o]ther than the counter-affidavits, [they] did nothing."Also, in their petition, they averred: "Aside from themotion for extension of time to file counter-affidavits,petitioners in the present case did not file nor send anyletter-queries addressed to the Office of the Ombudsmanfor Mindanao which conducted the preliminaryinvestigation." They slept on their right - a situationamounting to laches. The matter could have taken adifferent dimension if during all those four years, theyshowed signs of asserting their right to a speedydisposition of their cases or at least made some overtacts, like filing a motion for early resolution, to showthat they were not waiving that right. Their silence may,therefore be interpreted as a waiver of such right.w Asaptly stated in Alvizo, the petitioner therein was"insensitive to the implications and contingencies" of theprojected criminal prosecution posed against him "by
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not taking any step whatsoever to accelerate thedisposition of the matter, which inaction conduces tothe perception that the supervening delay seems to havebeen without his objection, [and] hence impliedly withhis acquiescence."41
In the relatively recent case of Cagang v.Sandiganbayan,42 the Supreme Court en banc clarified that theafore-mentioned ruling squarely applies to cases wherein theaccused was fully aware that a preliminary investigation againsthim/her has not yet been fully terminated despite a considerablelength of time.43
Applying the above-mentioned rulings of the High Tribunalto the present cases, the Court is of the opinion that accused-movant Chio's failure to [I] answer the charges against him, f21seek a reconsideration of the adverse resolution of the Officeofthe Ombudsman, and f31 raise the issue of inordinate delay atthe earliest opportunity amounted to an implicit acquiescence onhis part to the time spent by the Officeof the Ombudsman in theresolution of the complaint against him.
It bears emphasizing that although a respondent in acriminal case is not obligated to follow-up on his/her case,jurisprudence teaches that the accused's assertion of his/herright to speedy disposition of cases is entitled to strongevidentiary weight in determining whether or not he/she is beingdeprived thereof.v' This is due to the fact that the right to speedydisposition of cases is usually invoked by an accused to any typeof proceeding once the delay had become prejudicial tohim/her.45 Thus, assuming arguendo that accused-movant Chiowas indeed prejudiced by the purported delay in the preliminary
/741 pp. 487-488, Dela Peiia v. Sandiganbayan, 360 SCRA478 (2001) ~42 G.R. No. 206458, July 31, 201843 See Cagang v. Sandiganbayan, G.R. No. 206458, July 31, 201844 Perez v. People, 544 SCRA532 (2008), citing Barker v. Wingo, 407 US 514 (1972)45 See Cagang v. Sandiganbayan, G.R. No. 206458, July 31,2018
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investigation of these cases, he should have raised the issue ofinordinate delay at the first instance.w
Accused-movant Chio further submits that he was "stronglyprejudiced" by the alleged delay because [1] it caused him"distress, embarrassment, harassment and oppression;"47 [2] he isunable to gather evidence in support of his defense; [3] hispossible witnesses' ability to recall the events in these cases mayhave already been curtailed.v' and [4] he is already at anadvanced age and he will not have the same physical and mentalstrength to go through trial and defend himself.49
The Court is not persuaded.
In its Resolution promulgated on October 18, 2018, theCourt held that any anxiety and/ or emotional stress broughtabout by pending criminal charges are unwelcome but attendantinconveniences that confront any respondent or any accused in acriminal case. 50
Moreover, jurisprudence instructs that prejudice should beassessed in the light of the followinginterests of the accused: r 11to prevent oppressive pre-trial incarceration; r21 to minimizeanxiety and concerns of the accused to trial; and, r31 to limit thepossibility that his/her defense will be impaired.s! Thus, the merefact that accused-movant Chio is already seventy-two (72) yearsold is insufficient basis for his claim that he was "stronqluprejudiced" by the supposed delay in the preliminary investigationand the filing of the present Informations with the Court.
Lastly, the Court finds the accused-movant's assertion thathe is unable to gather evidence in support of his defense and hispossible witnesses' ability to recall the events in these cases,
~46 See Cagang v. Sandiganbayan, G.R. No. 206458, July 31, 2018; Perez v. People, 544 SCRA532 (2008),citing Barker v. Wingo, 407 US 514 (1972) ID47 p. 654, Id48 p. 654, Id49 p. 653, Id50 p. 15, Resolution51 See Corpuz v. Sandiganbayan, 442 SCRA294 (2004)
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unsubstantiated. In fact, he has not even identified who thesepotential witnesses would be.
WHEREFORE, accused Roger Cabales Chio's "Motion toDismiss/ Quash the Information [with prayer to suspend marking ofexhibits, arraignment and pre-trial, and submission of pre-trialbriefs and judicial affidavits]" dated September 25, 2018,52 isDENIED for lack of merit.
