Republic of the Philippines

SUPREME COURT
Manila

PO2 ROBERT ARDEZ y Placente,

Petitioner;
Convict-Movant,

-versus- G.R. NO. 214897

PEOPLE OF THE PHILIPPINES,

Respondent.
x---------------------------------------------x

MOTION TO REOPEN CASE with

MOTION TO ADJUST AND FIX PENALTY

CONVICT-MOVANT, through counsel, and unto this

Honorable Court, most respectfully avers that:

PREFATORY STATEMENT

1. The instant motion is in compliance with this Honorable

Court’s pronouncements in Hernan v. Sandiganbayan (G.R. No.
217874, December 5, 2017) therewith directing the Public Attorney’s
Office (PAO) “to represent and file the necessary pleading before this
[Honorable] Court in behalf of the convicted accused”1 as to
implement the relevant and applicable amended provisions under
Republic Act (R.A.) No. 10951, otherwise known as “An Act Adjusting
the Amount or the Value of Property and Damage on Which a Penalty is
Based and the Fines Imposed Under the Revised Penal Code, Amending for
the Purpose Act No. 3815, Otherwise Known as ‘The Revised Penal Code’,
as Amended.”, as well as in consonance with the directive to file “an
action before [this Honorable Court] that seeks the reopening of the
case.”2

2. “If a judgment, which could be affected and modified by

the reduced penalties provided in an amendatory law, has already

1
Ibid p. 16. (Bracketed words supplied)
2
Ibid. (Emphasis and underscoring supplied)
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

become final and executory, or the accused is serving sentence

thereunder, then practice, procedure and pragmatic considerations
would warrant and necessitate the matter being brought to the
judicial authorities for relief xxx.” (Villa v. Court of Appeals, et al,
G.R. No. 125834, December 6, 1999) Hence, this motion for the
reopening of the case is being filed to modify the final and executory
judgment relative thereto and apply the duly adjusted penalties as to
implement the beneficial provisions of R.A. No. 10951, the
amendatory law of Act No. 3815, otherwise known as the Revised
Penal Code (RPC), as amended.

2.1. On February 1, 2018, the PAO received an Indorsement

dated January 25, 2018 from PCSupt. Valfrie G. Tabian (a copy of
which is attached hereto as ANNEX “A”), Officer-In-Charge of the
Bureau of Corrections (“BuCor”), in compliance with OCA Circular
No. 245-2017, submitting a list of Persons Deprived of Liberty
(“PDLs”), in the custody of the BuCor in its different facilities, whose
cases may fall under R.A. No. 10951, summarized as follows:

R,A, NO.
10951 RPC CRIME PDL
SEC. 13 Art. 148 Direct Assaults 34
SEC. 19 Art. 155 Alarms and Scandals 4
SEC. 22 Art. 166 Forging Treasury or Bank Notes 1
SEC. 26 Art. 172 Falsification by Private Individual and Use of Falsified Documents 1
SEC. 29 Art. 178 Using Fictitious Name and Concealing True Name 1
SEC. 40 Art. 217 Malversation of Public Funds or Property 36
SEC. 60 Art. 265 Less Serious Physical Injuries 53
SEC. 61 Art. 266 Slight Physical Injuries and Maltreatment 97
SEC. 62 Art. 268 Slight Illegal Detention 34
SEC. 64 Art. 271 Inducing a Minor to Abandon His Home 1
SEC. 68 Art. 280 Qualified Trespass to Dwelling 9
SEC. 70 Art. 282 Grave Threats 41
SEC. 71 Art. 285 Other Light Threats 2
SEC. 72 Art. 286 Grave Coercions 10
SEC. 79 Art. 299 Robbery in an Inhabited House or Public Building 40
SEC. 80 Art. 302 Robbery in an Uninhabited Place or in a Private Building 9
SEC. 81 Art. 309 Theft 1060
SEC. 85 Art. 315 Swindling (Estafa) 770
SEC. 86 Art. 318 Other Deceits 4
SEC. 87 Art. 328 Special Cases of Malicious Mischief 12
SEC. 88 Art. 329 Other Mischiefs 1
SEC. 90 Art. 347 Simulation of Births 1
SEC. 91 Art. 355 Libel by Means of Writings or Similar Means 2
SEC. 94 Art. 358 Slander 4
SEC. 97 Art. 365 Imprudence and Negligence 38
TOTAL: 2,535

2
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

3. The instant motion is for one of the thirty-six (36) PDLs

convicted and serving sentences for the crime of malversation.

JURISDICTIONAL FACTS

4. Convict-Movant ROBERT P. ARDEZ is a Filipino, of legal

age, and is a PDL serving his sentence at the New Bilibid Prisons
(NBP), Bureau of Corrections, 1776 Muntinlupa City. He is being
represented in this proceeding by the PAO Special and Appealed
Cases Service (PAO-SACS) with office address at the 5th Floor, DOJ
Agencies Building, NIA Road corner East Avenue, Diliman, 1104
Quezon City, where he may be served with notices and other legal
processes of this Honorable Court.

5. Plaintiff-Appellee PEOPLE OF THE PHILIPPINES is

being represented in this proceeding by the Office of the Solicitor
General (OSG), with office address at No. 134 Amorsolo Street,
Legazpi Village, 1229 Makati City, where it may be served with
notices and other legal processes of this Honorable Court.

6. Likewise served with a copy of this motion, for being the

custodians of the convict-movant, are PCSUPT. VALFRIE G.
TABIAN (Ret.), Officer-in-Charge, Bureau of Corrections and Deputy
Director General for Administration, and SECRETARY VITALIANO
N. AGUIRRE II, Secretary, Department of Justice, with office
addresses at the Bureau of Corrections, New Bilibid Prison, 1776
Muntinlupa City, and the Department of Justice, Ermita, 1000 Manila.

STATEMENT OF THE MATTERS INVOLVED

7. As reflected in his Prison Record dated January 29, 2018 (a

certified true copy of which is hereto attached as ANNEX “B”),
convict-movant Robert Ardez y Placente (“Ardez”) is serving
sentence at the NBP for the following crimes and meted with
penalties of imprisonment by the following Regional Trial Courts
(RTC):

3
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

7.1. CRIMINAL CASE NO. 10671-2002-C for Murder -

imprisonment of reclusion perpetua, rendered by the RTC of
Calamba City, Laguna, Branch 36;

7.2. CRIMINAL CASE NO. 14195-2006-C for Malversation of

Public Property - imprisonment of six (6) years and one (1)
day, as minimum, to thirteen (13) years, as maximum,
rendered by the RTC of Calamba City, Laguna, Branch 37;

7.3. The convict-movant, after his appeal was denied by the

Court of Appeals in case no. CA-G.R. CR No. 35095,3
elevated the same to this Honorable Court via a petition for
review on certiorari, but the same was, likewise, denied.

8. The convict-movant’s Time Served with Earned Good

Conduct Time Allowance (GCTA) is twenty (20) years, nine (9) months
and ten (10) days, as of the date of his Prison Record.

9. The Decision (a copy of which is hereto attached as

ANNEX “C”) of the RTC of Calamba City, Branch 37, shows the
involved amount in the criminal case relevant to this motion, thus:

9.1. Criminal Case No. 14195-2006-C – Nine Thousand Pesos

(P9,000.00).

10. The Entry of Judgment (a certified copy of which is hereto

attached as ANNEX “D”) reflects that the Decision of this Honorable
Court, dated February 2, 2015, which denied the convict-movant’s
petition, became final and executory on September 11, 2015.

11. Retroactive ameliorative relief may be availed of by the

convict-movant, considering that the amount involved in Criminal
Case No. 14195-2006-C falls under Section 40.1 of R.A. No. 10951,
which states:

“SEC. 40. Article 217 of [the RPC], as amended by

Republic Act No. 1060, is hereby further amended to read
as follows:
‘ART. 217. Malversation of public funds or property;
Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is
3
Ibid.

4
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

accountable for public funds or property, shall

appropriate the same or shall take or
misappropriate or shall consent, through
abandonment or negligence, shall permit any other
person to take such public funds, or property,
wholly or partially, or shall otherwise be guilty of
the misappropriation or malversation of such funds
or property, shall suffer:

‘1. The penalty of prisión correccional in its

medium and maximum periods, if the amount
involved in the misappropriation or
malversation does not exceed Forty thousand
pesos (₱40,000.00).”
xxx xxx xxx”
Hence, this motion.

GROUND FOR THE ALLOWANCE OF THE MOTION

12. As mentioned earlier, the instant motion is in compliance

with this Honorable Court’s pronouncement in Hernan v.
Sandiganbayan, therewith directing the PAO “to represent and file
the necessary pleading before this [Honorable] Court in behalf of the
convicted accused” as to implement the relevant amended provision
under R.A. No. 10951.4

DISCUSSION

Retroactive ameliorative relief is

available in the advent of R.A. No.
10951.

13. A retroactive ameliorative relief is provided for under

Article 22 of the RPC, which treats of: (1) the passage of an
amendatory law that is beneficial to the accused, hence, it extends
ameliorative relief;5 and, (2) the principle of retroactivity, which
4
See Paragraph 2 hereof.
5
NB: The term “ameliorative relief” finds no reference in Philippine laws and jurisprudence, but is derived
from the American legal system’s retroactive application of ameliorative criminal legislation, which is the
“retroactive application of criminal legislation which mollifies criminal sanctions.” This is in contrast to the
U.S. Constitution’s ex post facto clauses which “forbid the application of any new punitive disadvantage to
the wrongdoer.” In said foreign jurisdiction, amendatory laws, also called “ameliorative legislations,” may

5
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

principle provides that criminal laws shall be given retroactive effect

if favorable to the accused (Evangelista v. Director, Bureau of
Corrections, G.R. No. 143881, August 9, 2001). Thus:

“ART 22. Retroactive effect of penal laws - Penal

Laws shall have a retroactive effect insofar as
they favor the persons guilty of a felony, who
is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code,
although at the time of the publication of such
laws a final sentence has been pronounced
and the convict is serving the same.”6

14. Here, the judgment against the convict-movant has

become final and executory.7 Notwithstanding the doctrine of
immutability of final judgments, which provides that a judgment can
neither be amended nor altered after it has become final and
executory,8 retroactivity may still be applied. Verily, when
“circumstances transpire after the finality of the decision rendering

consist of the following reliefs: (1) reduction of sentence; (2) reclassification of conduct; (3) redefinition of
criminal liability; and (4) decriminalization of a conduct.

References:

Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation.
University of Pennsylvania Law Review, Volume 121:120, 1972.
(Source: http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5103&context=penn_law_review; accessed February 25, 2018).

S. David Mitchell, In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration.
37 Am. J. Crin. L. 1, University of Missouri School of Law Scholarship Repository, Faculty Publication,
2009.
(Source: https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1433&context=facpubs; accessed February 25, 2018)

6
NB: “ART. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual
delinquency. - Mitigating or aggravating circumstances and habitual delinquency shall be taken into
account for the purpose of diminishing or increasing the penalty in conformity with the following rules:

5. Habitual delinquency shall have the following effects:

(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the
last crime of which he be found guilty and to the additional penalty of prisión correccional in its
medium and maximum periods;

(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last
crime of which he be found guilty and to the additional penalty of prisión mayor in its minimum
and medium periods; and

(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for
the last crime of which he be found guilty and to the additional penalty of prisión mayor in its
maximum period to reclusion temporal in its minimum period.”
7
See Paragraph 9 hereof.
8
Bongcac v. Sandiganbayan, G.R. Nos. 156687-88, May 21, 2009.

6
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

its execution unjust and inequitable, [this Honorable] Court may sit
en banc and give due regard to such exceptional circumstance
warranting the relaxation of the doctrine of immutability.” (Hernan v.
Sandiganbayan, supra).

15. The advent into law of R.A. No. 10951 presents an

exceptional circumstance which warrants the setting aside of the
doctrine of immutability of final judgments and the application of the
retroactive ameliorative relief available to the convict-movant (Ibid),
not so much as in the finding of guilt, but only for the purpose of
adjusting the penalty imposed.

Convict-movant qualifies for

retroactive application of R.A. No.
10951, hence, his penalty must be
adjusted.

16. Convict-movant qualifies for the retroactive application

of R.A. No. 10951, as records show that he is not a habitual
delinquent.9

17. In fixing the indeterminate penalty relative to this motion,

the following steps shall be applied:

17.1. Step 1 – determine the range of the penalty. This shall be

done with the aid of the Table of Penalties. (Table of Penalties,
Appendix “A”, Reyes, L.B. (2008). The Revised Penal Code,
Criminal Law, Book Two (Articles 114-367), 17th Edition, Rex
Bookstore, Inc., Manila, Philippines).

17.2. Step 2 – determine the minimum, medium and maximum parts

of the penalty according to the Table of Penalties in order to
fix the indeterminate sentence composed of the minimum
and maximum terms for the penalty, as required in Section 1
of Act No. 4103, otherwise known as the Indeterminate
Sentence Law (“ISL”):

“Section 1. Hereafter, in imposing a prison

sentence for an offense punished by the

9
“[A] person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his
release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or
falsification, he is found guilty of any of said crimes a third time or oftener (See ART. 62 of the RPC).

7
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Revised Penal Code, or its amendment, the

court shall sentence the accused to an
indeterminate sentence the maximum term of
which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of the said Code, and
the minimum which shall be within the range
of the penalty next lower to that prescribed by
the Code for the offense; and if the offense is
punished by any other law, the court shall
sentence the accused to an indeterminate
sentence, the maximum term of which shall
not exceed the maximum fixed by said law
and the minimum shall not be less than the
minimum term prescribed by the same.”

17.3. Step 3 – determine the maximum term of the penalty,

applying Art. 64 of the RPC, which states:

“ART. 64. Rules for the application of penalties

which contain three periods. - In cases in which
the penalties prescribed by law contain three
periods, whether it be a single divisible
penalty or composed of three different
penalties, each one of which forms a period in
accordance with the provisions of Articles 76
and 77, the court shall observe for the
application of the penalty the following rules,
according to whether there are or are not
mitigating or aggravating circumstances:

1. When there are neither aggravating nor

mitigating circumstances, they shall
impose the penalty prescribed by law in its
medium period.

2. When only a mitigating circumstance is

present in the commission of the act, they
shall impose the penalty in its minimum
period.

3. When an aggravating circumstance is

present in the commission of the act, they

8
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

shall impose the penalty in its maximum

period.

4. When both mitigating and aggravating

circumstances are present, the court shall
reasonably offset those of one class against
the other according to their relative weight.

5. When there are two or more mitigating

circumstances and no aggravating
circumstances are present, the court shall
impose the penalty next lower to that
prescribed by law, in the period that it may
deem applicable, according to the number
and nature of such circumstances.

6. Whatever may be the number and

nature of the aggravating circumstances,
the courts shall not impose a greater
penalty than that prescribed by law, in its
maximum period.”

17.4. Step 4 – in fixing the minimum term, the penalty next lower
to the imposable penalty shall be used (Section 1 of Act No.
4103).

18. Under Section 40.1 of R.A. No. 10951, the provision on the
crime of malversation, Art. 217 of the RPC has been amended, viz:

“SEC. 40. Article 217 of [the RPC], as

amended by Republic Act No. 1060, is hereby
further amended to read as follows:

“ART. 217. Malversation of public funds or

property; Presumption of malversation. - Any
public officer who, by reason of the duties of
his office, is accountable for public funds or
property, shall appropriate the same or shall
take or misappropriate or shall consent,
through abandonment or negligence, shall
permit any other person to take such public
funds, or property, wholly or partially, or

9
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

shall otherwise be guilty of the

misappropriation or malversation of such
funds or property, shall suffer:

‘1. The penalty of prisión correccional in its

medium and maximum periods, if the amount
involved in the misappropriation or
malversation does not exceed Forty thousand
pesos (₱40,000.00).”
xxx xxx xxx

19. The amount involved in Criminal Case No. 14195-2006-C

is Nine Thousand Pesos (P9,000.00). Hence, convict-movant’s case
falls under Section 40.1 of R.A. No. 10951.

20. Applying ISL, vis-à-vis Article 64 (1) of the RPC, the

imposable penalty under Section 40.1 of R.A. No. 10951, prisión
correccional in its medium and maximum periods, is pegged at four
(4) months and one (1) day to two (2) years and four (4) months, as
minimum, to three (3) years, six (6) months and twenty-one (21) days
to four (4) years, nine (9) months and ten (10) days, as maximum.10

21. An application of retroactive ameliorative relief would

result in the modification of the original penalty of imprisonment of
six (6) years and one (1) day, as minimum, to thirteen (13) years, as
maximum, to the adjusted penalty of imprisonment of four (4)
months and one (1) day to two (2) years and four (4) months, as
minimum, to three (3) years, six (6) months and twenty-one (21) days
to four (4) years, nine (9) months and ten (10) days, as maximum

22. Convict-movant Ardez’s Time Served with Earned GCTA is

twenty (20) years, nine (9) months and ten (10) days, as of January 29,
2018, the date of his Prison Record (please see Annex “B” hereof).

23. Based on the foregoing, it is clear that, applying the

retroactive ameliorative benefit of Section 40.1 of R.A. No. 10951,
convict-movant Ardez’s sentence must be adjusted accordingly, the
same being beneficial to him after he has fully served his sentence in

10
No aggravating or mitigating circumstance in the instant case.

10
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Criminal Case No. 14195-2006-C for the crime of Malversation of Public

Property.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court that:
(a) the instant case be REOPENED; and,
(b) this Honorable Court’s Decision dated February 2, 2015, be
MODIFIED, thereby ADJUSTING the penalty of convict-
movant Robert Ardez y Placente of imprisonment six (6)
years and one (1) day, as minimum, to thirteen (13) years, as
maximum, to imprisonment of four (4) months and one (1)
day to two (2) years and four (4) months, as minimum, to
three (3) years, six (6) months and twenty-one (21) days to
four (4) years, nine (9) months and ten (10) days, as
maximum, in conformity with R.A. No. 10951.

Quezon City for Manila, March 12, 2018.

Department of Justice
PUBLIC ATTORNEY’S OFFICE
Special and Appealed Cases Service
5th Floor, DOJ Agencies Building,
NIA Road corner East Avenue,
Diliman, 1104 Quezon City
Tel. Nos. 928-9137/929-9436 local 111

By:

PERSIDA V. RUEDA-ACOSTA
Chief Public Attorney
Roll No. 36327
IBP Lifetime Member No. 07234; 01/24/08
MCLE Compliance No. VI-0006481; 02/20/18

SILVESTRE A. MOSING
Deputy Chief Public Attorney
For Visayas and Mindanao
Roll No. 38844
IBP Lifetime Member No. 07930; 01/13/09
MCLE Compliance No. V-0006562; 03/03/15

11
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

ANA LISA M. SORIANO

Deputy Chief Public Attorney for Luzon
Roll No. 50954
IBP Lifetime Member No. 010152; 08/05/11
MCLE Compliance No. V-0006591; 03/03/15

MARIEL D. BAJA
Public Attorney IV
Roll No. 55365
IBP Lifetime Member No. 010149; 08/05/11
MCLE Compliance No. VI-0006216; 02/01/18

FLORDELIZA G. MERELOS
Public Attorney IV
Roll No. 53873
IBP Lifetime Member No. 09510; 01/06/11
MCLE Compliance No. VI-0006254; 02/01/18

NIÑA GENOVEVA D. DUEÑAS-DIMACULANGAN

Public Attorney III
Roll No. 56828
IBP Lifetime Member No. 09512; 01/06/11
MCLE Compliance No. VI-0006233; 02/01/18

-and-

RICHARD DALE V. ESCOLANO

Public Attorney II
Roll No. 63318
IBP No. 1086509; 01/03/18
MCLE Compliance No. VI-0006234; 02/01/18

EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 New Rules of Civil Procedure)

The foregoing Motion to Reopen Case with Motion To Adjust

and Fix Penalty is being served by registered mail since personal
service is not practicable due to the distance and limited number of

12
MOTION TO REOPEN CASE WITH MOTION TO ADJUST AND FIX PENALTY
Ardez v. People, G.R. No. 214897
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

messengers in the undersigned’s office.

RICHARD DALE V. ESCOLANO

Copy furnished:

(1) COURT OF APPEALS

(CA G.R. CR NO. 35095)
Ma. Orosa Street, Ermita Reg. Receipt No. ______
1002 Manila City Date: ________________

(2) OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo Street, Legaspi Village
1229 Makati City
Reg. Receipt No. ______
Date: ________________

(3) PCSUPT. VALFRIE G. TABIAN (Ret.)

Officer-in-Charge, and Deputy Director General for Administration,
BUREAU OF CORRECTIONS
New Bilibid Prison,
1776 Muntinlupa City
Reg. Receipt No. ______
Date: ________________

(4) SECRETARY VITALIANO N. AGUIRRE II

DEPARTMENT OF JUSTICE
Ermita, 1000 Manila
Reg. Receipt No. ______
Date: ________________

13