dissenting.
I respectfully dissent. The majority has reversed a legitimate action of a trial judge rather than addressing the real evil of a flawed statute. Pursuant to KRS 532.070, the circuit judge modified the punishment recommended by the jury of two consecutive sentences of life imprisonment (incidentally, an illegal sentence under KRS 532.110[l][c]), and substituted the lesser sentence of two consecutive twenty-five-year terms.
There is no problem with this procedure whatever except for the provisions of KRS 439.3401 regarding minimum periods of imprisonment necessary for parole eligibility. If that statute is applied literally, the appellant would be eligible for first parole consideration in twelve years under the jury’s recommended life sentence, but not until twenty-five years (fifty percent) under the court’s sentence.
To me, the simple solution to this disparity problem (discussed comprehensively in Justice Leibson’s dissent in Huff v. Commonwealth, Ky., 763 S.W.2d 106 at pp. 112 and 113) is to interpret this statute with a commonsense approach. Thus, when the General Assembly dictates in 439.3401(2) that twelve years shall be the minimum term to be served before one becomes eligible for parole consideration on a sentence to life imprisonment (the longest term which anyone could serve), it establishes a cap or ceiling. Applying this cap to harmonize with the provisions of 439.3401(3) results in an interpretation that, when one receives a sentence of a term of years, he must serve a minimum before parole eligibility of fifty percent (50%) of his term or twelve (12) years, whichever is less. So, one convicted of a B felony would serve fifty percent of his sentence, while one convicted of an A felony would serve fifty percent if his sentence is from twenty to twenty-four years, and twelve years if his sentence is for a term exceeding twenty-four years.
If this interpretation is applied to the case before us, then the appellant under the sentence pronounced by the trial judge would first be eligible for parole consideration after he has served twelve (12) years, the identical period he would have had to serve before parole consideration under the jury’s life sentence recommendation.
It is submitted that this suggested interpretation of KRS 439.3401, when applied uniformly, would eliminate the disparity problem for which it is harshly criticized. This problem, incidentally, will continue to be with us. Although the General Assembly amended this statute in the 1991 Extraordinary Session in an attempt to eliminate the disparity between parole eligibility in capital offenses and lesser offenses, it did not correct the problem confronted in this case.
STEPHENS, G.J., joins in this dissent.