dissenting.
Respectfully, I dissent. The majority’s interpretation of KRS 532.080(2) permits the Commonwealth to change the penalty for the offense charged if the accused is under twenty-one years of age by waiting until the accused reaches his twenty-first birthday to indict and try him for the crime.
In this case, the time between the date of the principal offense and the accused’s twenty-first birthday is relatively short. But the Court’s approach herein would apply equally if the Commonwealth waited several years from the date of an offense for the accused to become twenty-one before indictment or trial so that a persistent felony offender charge could be added to the indictment.
To hold that appellant can be convicted as a persistent felon even though he was not twenty-one years old at the time of commission of the principal offense subjects him to enhanced punishment for attaining age twenty-one. This is unrelated to appellant’s criminal liability. In these circumstances, enhancement becomes a function of the prosecutor’s decision rather than a function of the appellant’s status as a previously convicted felon at the time he committed the offense to be punished.
*7The crux of the problem is a misunderstanding of what the PFO statute punishes. The statute does not punish the status or condition of being a persistent felon per se, but simply provides a more severe punishment for the new offense (in this case receiving stolen property) that has been committed. Since it is the new offense that is being punished, it is the condition of the accused on the date of the new offense that is critical in deciding the punishment to which he is subject. Focusing on the accused’s condition at the time of trial violates due process by punishing him for who he is, not for what he has done. cf. Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1963).
The Commentary to the PFO statute states that it is intended to apply to “individuals who have achieved relative maturity.” The Commentary further states;
“(C)are must be taken to avoid a premature classification of an individual as an habitual criminal. The first requirement (that the offender be over twenty-one years of age) is directed toward this end.”
The time of commission of the principal offense is the appropriate and logical time to determine whether “relative maturity” has been achieved. Both age and conduct are factors in determining whether the aim of incarceration is rehabilitation of the individual or protection of the public from persons deemed unlikely candidates for rehabilitation.
I do not agree that we would have to rewrite KRS 532.080(2) in order to reverse appellant’s PFO conviction herein. The statute says the enhanced penalty for the offense charged applies to “a person who is more than twenty-one (21) years of age and who stands convicted,” not when he stands convicted. It is as grammatical for the age requirement to apply to the time of the offense as to the time of trial, and a great deal more logical.
We should adhere to the rule of statutory construction contained in KRS 500.030 that “All provisions of (the penal code) shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law.”
STEPHENS, C.J., joins in this dissent.