concurring in part, dissenting in part.
A reversal herein is appropriate, as conceded by the Commonwealth, on the issue of the failure of the trial court to instruct on the lesser offense. Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988).
This case will likely be retried, as indicated in the majority opinion. The court, on retrial should be instructed to refuse to admit into evidence the judgment of the prior conviction of a felony which resulted from a plea of guilty, unless the Commonwealth introduces evidence that the defen*585dant did knowingly and voluntarily enter a plea of guilty.
The footnote to the majority opinion conjectures that the Sixth Circuit would not have reached the same result in Dunn v. Simmons, 877 F.2d 1275 (6th Cir.1989), had the defendant not positively asserted under oath the denial of his constitutional rights. Yet the Sixth Circuit granted habeas corpus, even though the defendant had made some admission, on cross examination, relative to some knowledge “now” of his constitutional rights.
Under the backdrop of Boykin, supra, the Court stated that:
Although the Dunn procedure ostensibly permits the use of the presumption only to satisfy a burden of production, in reality it may be utilized by the state to carry its ultimate burden of persuasion. That is because, if the defendant offers no rebuttal, the state will prevail; the presumption becomes a substitute for evidence supplementing the conviction record. The practical effect of the Dunn procedure, then, is to allow the state to prevail by carrying its burden of persuasion upon the bare record of the fact that a conviction was entered against the defendant. This result ignores the Supreme Court’s admonition in Boykin against presuming a waiver from a silent record and, it offends this Court’s requirement in Roddy, since, when the state is said to have made out a bare prima facie case, and it has done so only by relying upon a presumption, the state cannot be said to have met its burden of persuasion by supplementing an inadequate record with clear and convincing evidence. Dunn, supra, at page 1278.
Herein, the majority, in reality, are accepting and applying the conclusions asserted in the dissenting opinion of Circuit Judge Ryan. Dunn v. Simmons, supra, at pages 1279-1281.
The filing of a record of conviction, alone, which record is “silent” as to understanding and knowledge of the defendant, should not impose the burden on all defendants, represented by various counsel with a range of legal skills, to testify that they were not appropriately apprised or did not have a clear understanding of their rights. In the absence of such a conclusion, imagine the scenario in which the state knows that it cannot supplement the “silent record,” with “a clear and convincing showing that the plea was in fact understandingly entered,” but did not disclose that information to defendant’s counsel.
Will that non-disclosure of such vital information result in the imposition of totally unwarranted “enhanced” sentences?
In order to grant accord to the Sixth Circuit’s holding in Dunn, supra, and to avoid the necessity that defendants’ legal counsel must take yet another step, in an already technical and complex legal system, I would also reverse on this latter issue.
STEPHENS, C.J., joins.