dissenting.
Respectfully, I dissent.
This case graphically illustrates the reason why we have a deplorable credibility gap in criminal sentencing. Campbell and Jones have committed a third rate, nonviolent Class D felony, breaking and entering to commit theft, now classified as burglary in the third degree. KRS 511.040. This offense has a range of punishment from one to five years. KRS 532.020(l)(a).
By splitting the crime into two offenses, Theft and Burglary III, then recognizing the appellants’ status as persistent felony offenders which provides significantly increased sentences, and then ordering the enhanced sentences to run consecutively, the criminal justice system has managed to punish this relatively minor offense with sentences of thirty (30) years for Campbell and twenty-four (24) years for Jones. This means that fifty-four years (54) have been meted out for breaking and entering a small business establishment, closed for *882the night, in order to carry off some of the merchandise.
Further, it may be that neither appellant is eligible for parole until having served a minimum term of incarceration of not less than twenty (20) years. Campbell and Jones enjoy PFO I status, and their separately enhanced sentences for theft and burglary have been ordered served consecutively. KRS 532.080(7) requires “a minimum ... of not less than ten (10) years” before parole eligibility upon conviction of an offense as a PFO I. In contrast with Campbell and Jones, there are serious offenders who have committed terrible crimes and been sentenced to life who are eligible for parole under present Parole Board regulations, and often back on the street, after eight years. Indeed, the Parole Board may release such a person even sooner under an early release program.
The time is long past for the General Assembly to take a new look at our statutory sentencing and parole procedures, and effect needed reforms. The criminal sentencing process needs to be changed to provide realistic maximum sentences initially, let the punishment fit the crime, and end the game of parole. A criminal who has been found guilty and sentenced, and who does not deserve to be judicially probated, should serve the time (less, of course, a modicum of time off for good behavior as an inducement not to attack the prison officials).
In the meantime, while awaiting legislative reform, we should put an end to our judicial contribution to the present unreasonable and irresponsible sentencing procedures. The rules of the game, now honored only in the breach, require the prosecutor to carve out and convict for only the most serious offense represented by “the same criminal episode.” American Law Institute, Model Penal Code, Multiple Offenses, § 1.07:
“ ‘Arising out of the same criminal episode’ is meant to include offenses that occur on substantially the same occasion or are motivated by a common purpose or plan and are necessary or incidental to the accomplishment of that purpose or plan.” Id. at 118-19.
KRS 505.020 provides that a person should not be convicted of multiple offenses when a single course of conduct establishes the commission of more than one offense. Further, KRS 506.110 provides that a person could not be convicted on the basis of the same course of conduct of both the commission of a crime and a criminal attempt to commit that crime. We have virtually written these rules off the books. The majority opinion opines that multiple convictions are appropriate because “different elements comprise the crimes of theft and burglary.” This rationale makes no sense where the evidence shows that the only motivation for the burglary was the theft that was committed on entry. The purpose of breaking in was not to commit burglary, but to commit another crime upon gaining entry; in this case theft. We permit two convictions where there is in fact only a singular criminal intent. This should be treated as double jeopardy in conflict with federal and state constitutional guarantees.
It is true that the act of burglary is complete when the criminal enters unlawfully with the intent to commit a crime. However, the act of entering is essentially just a step towards committing the crime that occasioned the entry. Where the crime which was the purpose of the burglary is clearly identified by facts and circumstances, the single criminal intent should not be punished twice. It is only where the burglar commits an additional, gratuitous offense unnecessary to the crime which was the object of the burglary that the state should punish for both offenses. Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984). If the burglary is to accomplish a theft, and the burglar commits an assault, the burglary and the assault should be punished, but not the burglary, theft and assault. In Commonwealth v. Varney, Ky., 690 S.W.2d 758 (1985), we held that, given the facts of the case, the merger principle applied and the defendant could not be convicted of both robbery and assault. Why doesn’t the same principle apply here? The situation is indistinguish*883able, except that in Varney applying the principle operated against the interest of the accused whereas to apply the principle here would benefit the accused.
The statute setting out the crime of “criminal attempt,” KRS 506.010, presents yet another facet of this complication. In the present case, using the language of the statute, the burglary was “a substantial step in a course of conduct planned to culminate in [Campbell’s and Jones’] commission of the crime.” Under KRS 506.-010(l)(b) such constituted a criminal attempt. KRS 506.110, multiple convictions, provides that the prosecution of an attempt to commit an offense bars prosecution for the offense. A burglary premised on an intent to steal is also an attempted theft, and conviction for both burglary and theft violates the principle in KRS 506.110.
The ongoing efforts of the judicial system to so interpret the law as to extract maximum sentences is counterproductive. Rather than creating an image that we are hard on crime, it succeeds only in presenting a picture of disproportionate sentencing. In a case such as the present one the consequences are downright embarrassing. In the future the General Assembly needs to replace the present system with a system wherein we impose appropriate sentences in the first place, and then require the person convicted to serve the time. But, in the meantime the judiciary needs to draw back from decisions construing the law in such a manner as to create disparate sentencing such as has occurred here. Campbell and Jones, two third-rate, nonviolent criminals, will be put away at public expense, possibly for the next twenty years, whereas others who have hideously offended will be released in eight, perhaps less, under Parole Board early release programs.
The next problem presented by the majority opinion is that the sentencing statutes are misconstrued and misapplied. This occurs because sentences as enhanced on the basis of PFO status are to be served consecutively, resulting in total sentences exceeding the maximum in KRS 532.-H0(l)(c).
KRS 532.110(l)(c) provides that “[t]he aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed.” Under this statute (and KRS 532.080(6)(b)) the maximum term of imprisonment for each appellant, having been convicted of a Class D felony and found to be a persistent felony offender in the first degree, is twenty years. KRS 532.080(6)(b). Campbell has been sentenced to thirty years and Jones to twenty-four years.
The majority opinion cites Devore v. Commonwealth, Ky., 662 S.W.2d 829 (1984), as authority that individuals, such as Campbell and Jones, who commit a felony while on parole for a previous felony are excluded from the statutory máximums in KRS 532.110(l)(c) and KRS 532.080(6)(b); that therefore they may be sentenced to consecutive terms of imprisonment exceeding this sentencing cap, which would otherwise apply when convictions for separate offenses are enhanced after a PFO conviction.
Devore held that KRS 533.060(2) covers sentencing of paroled felons who commit subsequent felonies while on parole to the exclusion of KRS 532.110(l)(c). KRS 533.-060(2) states:
“When a person has been convicted of a felony and ... released on parole ... and is convicted or enters a plea of guilty to a felony committed while on parole ... the period of confinement for that felony shall not run concurrently with any other sentence.”
My dissenting opinion in Devore takes the opposite view:
“[T]he provisions in KRS 533.060 are directed to the fact that sentences for new offenses shall not run concurrently with past offenses for which the defendant is on parole. A reasonable interpretation of the phrase ‘with any other sentence,’ (KRS 533.060(2)) is that ‘any other sentence’ means that unserved portion of the sentence for the felony for which *884probation or parole should be revoked.” Devore, 662 S.W.2d at 831.
KRS 633.060(2) was misapplied in De-vore. The statute should not be construed to prohibit concurrent sentences for new felonies committed while a defendant is on parole.1
The majority of this Court reached its decision in Devore by reasoning that KRS 533.060(2) was enacted subsequently to KRS 532.110(l)(c), and that therefore KRS 533.060(2) was a “purposeful” override of the earlier statute. Now both KRS 532.110 and KRS 533.060 have been reenacted in 1986 in substantially the same language. Both statutes are equally “purposeful.”
Statutory provisions should be read so as not to conflict with one another, whenever reasonably possible. Devore was premised on there being some conflict or an ambiguity in the statutes. Such conflict or ambiguity, if there is any, should be resolved in favor of lenity towards the accused. Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). It is a rule of longstanding that penal statutes are not to be extended by construction, but must be limited to cases clearly within the language used. Commonwealth v. Malone, 141 Ky. 441, 132 S.W. 1033 (1911). As stated in Commonwealth v. Colonial Stores, Incorporated, Ky., 350 S.W.2d 465, 467 (1961):
“Doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense....”
Our decision in Devore went off the beaten path to find a reason to disregard the sentencing cap in KRS 532.110(l)(c), and used a reason that is no longer viable since that statute was reenacted in 1986. We should now apply the sentencing cap in KRS 532.110 as written to these appellants.
. Note that the majority view expressed in De-vore also renders meaningless KRS 532.110(3), which provides:
"When a defendant is sentenced to imprisonment for a crime committed while on parole in this state such term of imprisonment and any period of reimprisonment that the board of parole may require the defendant to serve upon the revocation of his parole shall run concurrently, unless the court orders them to run consecutively.”