dissenting.
Respectfully I dissent. Three different conclusions expressed in the majority opinion are in direct conflict with the statutes in point and our own previous decisions. They are as follows.
I. THE CHARGE OF KIDNAPPING THE CHURCH PIANIST
The conduct underlying the charge of kidnapping the church pianist consisted of *141tying her hands, taking her keys and then taking her car.
KRS 509.050, the “Exemption” section of the kidnapping statute, provides:
“A person may not be convicted of ... kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.”
There is an exception to this “exemption” in KRS 509.050. It “is not applicable to a charge of kidnapping ... incidental to the commission of a criminal escape.” Id.
The appellant was convicted of two different kidnapping offenses. One stemmed from the restraint of Michael Harper at the jail; the other from the restraint of the church pianist before taking her car. The exception to the exemption to the kidnapping statute applies to the escape from jail, but not to taking the keys and then the car from the church pianist. The Commentary to KRS 509.050 explains:
“The necessity for this provision arises out of the fact that many of the crimes defined in this code have as an essential element, or as an incidental element, a restriction on another’s liberty_ Because of this fact, a prosecutor could misuse the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses than are otherwise available.
... The provision [exemption] seeks to express a policy against the use of kidnapping to impose sanctions upon conduct which involves a movement or confinement (of another person) that has no criminological significance to the evil toward which kidnapping is directed. It then provides a flexible standard by which courts are to enforce that policy. Before criminal behavior that is directed toward the completion of robbery, rape, or some other offense can constitute kidnapping, there must be an interference with liberty in excess of that which ordinarily accompanies that offense.”
The Commonwealth argues that it was unnecessary to tie the victim’s hands to take her keys and her car, but this view strains the common sense meaning of the words of the exemption statute, “unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.” Such a narrow interpretation would make the exemption statute nonexistent in almost every case, and is not a reasonable interpretation of the statute.
The charge in the indictment relating to kidnapping the church pianist states she was restrained “for the purpose of accomplishing the advancement of the commission of the felony of escape in the first degree.” The proof would not support this charge. The appellant and his companions accomplished the escape from jail a day earlier. The instruction to the jury framed this element in terms of whether “the defendant intended to accomplish or advance the commission of the theft of a motor vehicle and escape.” “Theft of a motor vehicle” was not covered by the indictment and would be inappropriate because of the exemption statute. “Escape” must be defined in the statutory terms applicable to escape in the first degree, which is confined to escape from “the detention facility in which a person is held (KRS 520.010(5)),” and does not include what you do the next day to continue on your journey.
The Commonwealth makes the convoluted argument that the appellant should have requested “an unlawful imprisonment instruction” per KRS 509.030, if he thought the evidence insufficient to convict him of kidnapping the church pianist. This argument shows the weakness, rather than the strength of the Commonwealth’s argument.
The appellant asked for a directed verdict for “insufficient evidence,” and he was entitled to one.
*142II. PREVIOUS CONVICTION FOR PURPOSES OF PFO STATUS
Appellant had three prior 1980 judgments of conviction from Crittenden County, all of which ran concurrently, and two 1980 judgments of conviction from Livingston County, both of which ran concurrently with the Crittenden County judgments. All of the convictions related to crimes occurring in a six week period commencing June 15, 1980.
Appellant argued that he had only one previous conviction for enhancement purposes, citing KRS 532.080(4), which provides that “two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.”
The Commonwealth argued successfully to the trial court that because one of these prior convictions was an escape from jail charge the exception (“while that person was imprisoned”) applied.
The only reasonable interpretation of the statute, consistent with the Commentary to the Penal Code and our cases analyzing the PFO statute, is that the phrase, “an offense committed while that person was imprisoned,” does not apply to in custody awaiting trial. Imprisonment refers to serving a sentence.
As stated in Combs v. Commonwealth, Ky., 652 S.W.2d 859, 861 (1983): .
“The 1974 commentary to the criminal code makes it plain that the intent of the persistent felony offender statute was to restrict its application to persons who have been previously exposed to an institutional rehabilitative effort and that when an individual has been convicted two times before being exposed to the institutional rehabilitation efforts afforded by a term of imprisonment, the two convictions shall count only as one in persistent felony offender proceedings.”
The Commonwealth argues that because a person later convicted can be given credit for jail time before conviction, the rule otherwise applicable to “concurrent or uninterrupted consecutive terms of imprisonment” does not apply. This argument may have succeeded with the trial judge, but it certainly runs contrary to the plain meaning of the statute, the Commentary, and the cases interpreting the statute.
III. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
In closing argument over objection the prosecutor argued at length to the effect that the appellant should be found guilty and severely punished to send a message to the jails and prisons as to the consequences of escape, thereby deterring future escapes.
His comments were beyond the scope of the record and the issues before the jury. They included:
“What keeps those people [on ‘minimum security’] from walking off all of the time? There are no fences. What keeps them there? They don’t want to be charged with escape.
... the threat of the law hanging over their head and quick and sure punishment for what they are going to do is more of a deterrent to escaping and taking someone hostage and kidnapping someone than all of the steel and concrete you can pore into this jail over here.
So, you sit here in a position today to establish a sentence that will reconstruct the jail, that will reconstruct a jail for a deterrent, ...
I guarantee you that a stiff, heavy penalty for that type crime, this type of crime, once or twice by a Caldwell County jury will do more to make that jail safe and secure than any amount of physical construction.”
We should face up to whether or not we permit this type of argument.
*143Appellant cites a number of cases for the proposition that prosecutors “should not go outside the record” to buttress the reasons for conviction, and suggest punishment other than what is appropriate for the particular crime, e.g., Baker v. Commonwealth, 268 Ky. 248, 104 S.W.2d 976 (1937); Carnes v. Commonwealth, Ky., 406 S.W.2d 849 (1966). Appellant also cites one case factually in point from another jurisdiction, People v. Panczko, 20 Ill.2d 86, 169 N.E.2d 333 (1960). But apparently there is no case squarely in point on the facts from this jurisdiction.
The rule is thus stated in the recent case of Wallen v. Commonwealth, Ky., 657 S.W.2d 232, 234 (1983):
“We have not engaged in any blanket condemnation of prosecutorial comment related to deterrence. We have condemned argument only where the prosecutor suggests that the jury convict or punish on grounds or for reasons not reasonably inferred from the evidence.”
In this case the prosecution told the jury that he would “guarantee ... that a stiff, heavy penalty ... will do more to make the jail safe and secure than any amount of physical construction.” This argument far exceeds our ruling limiting the prosecutor in argument to seeking punishment “on grounds or for reasons [to be] reasonably inferred from the evidence.”
This case should be reversed and remanded for a new trial excluding the charge of kidnapping the church pianist and limiting the PFO charge to PFO 2d.