concurring.
I concur with the result reached by the majority opinion but wish to express my views separately. However, I do not believe that Commonwealth v. Davis, Ky., 728 S.W.2d 532 (1987) should be overruled.
The Court of Appeals correctly reversed the judgment of conviction because the penalty provision applicable to the offense of which Lundergan was convicted does not specify whether it was a felony or a misdemeanor. When there is doubt in the construction of a penal statute, it will be resolved against a construction that would produce an extremely harsh or incongruous result. Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980); Commonwealth v. Colonial Stores, Ky., 350 S.W.2d 465 (1961).
It has long been recognized in Kentucky that where there is a conflict or ambiguity in penal statutes, the applicable rule of construction is what has been called the “Rule of Lenity.” The rule means that penal statutes are not to be extended by construction, but must be limited to cases clearly within the language employed. Cf. Commonwealth v. Malone, 141 Ky. 441, 132 S.W. 1033 (1911). A limited review of some of the cases decided by this Court in the last decade, indicates continued adherence to the Rule of Lenity. See Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985); Woods v. Commonwealth, Ky., 793 S.W.2d 809 (1990) and Stoker & Davis v. Commonwealth, Ky., 828 S.W.2d 619 (1992). Although unsuccessful, an articulate minority has argued for its application in several other cases. See dissents in Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987); Dotson v. Commonwealth, Ky., 740 S.W.2d 930 (1987); Francis v. Commonwealth, Ky., 752 S.W.2d 309 (1988); Commonwealth v. Bass, Ky., 777 S.W.2d 916 (1989). The present case clearly presents such an ambiguity.
A person who violates K.R.S. 6.775(7) is subject to penalties provided in K.R.S. 6.990(11). Nothing in the statutory provisions specifically defines the violation of K.R.S. 6.775(7) as either a misdemeanor or a felony. The absence of such a definition clearly distinguishes § 11 from K.R.S. 6.990(4) which specifically designates violations of K.R.S. 6.775(1), (2), (3) or (4) as Class D felonies. Subsection 7 is omitted, which is an important factor in considering this case.
The penalty provided in § 11 also fails to meet the definition of a felony for offenses created outside the penal code. K.R.S. 532.020 provides in pertinent part that any offense defined outside this code ... provides a sentence to a term of imprisonment ... for at least one year ... and shall be deemed a Class D felony. The penalties set out in § 11 do not conform to such a designation. The definition of felony in the penal code is "... an offense for which a sentence to a term of imprisonment of at least one year_” K.R.S. 500.080(5).
The penalties imposed by § 11 do not clearly come within either the misdemeanor or felony provisions. When the statute does not clearly indicate the type of offense, the courts regard the offense as a misdemeanor. Commonwealth v. McClure, Ky.App., 593 S.W.2d 92 (1979).
The problem with § 11 is that it does not properly inform the reader that a violation constitutes a felony. The penalties imposed by § 11 do not relate to the penalties for either felonies or misdemeanors. If the *733legislature had intended a violation of K.R.S. 6.775 to be a felony, it should have stated so clearly. All persons must be treated equally by the law. Although it could be said that a violator must assume some risk, the better view is that statutes must be clear and unambiguous in order to provide all persons, whether legislator or laborer, with notice of the penalty they might suffer if found to be in violation thereof.
It should be recognized that K.R.S. 6.775(7) is a “nonpenal code offense.” The failure of the legislature to specifically determine that a violation of the statute was either a felony or misdemeanor is of particular concern here because in 1976, the General Assembly designated certain other offenses set out in K.R.S. 6.775 as felonies. After the published decision of the Court of Appeals the General Assembly did amend the penalty provisions of K.R.S. 6.990 as part of a general legislative revision. In the 1992 session of the General Assembly, § 11 was amended but such amendments do not apply to this case. However it does appear that there may be a possibility that the General Assembly recognized that there was ambiguity in § 11.
K.R.S. 532.005 states that Chapter 532 applies to “crimes outside the provisions of the penal code.” The General Assembly provided in K.R.S. 532.020 for the classification of crimes defined outside the code. The 1974 commentary explains that this section was developed to provide a classification system for offenses defined outside the code and to make the classification consistent with the classifications used outside the code. 7 Baldwin’s Kentucky Revised Statutes Annotated 215.
The definition and classification of nonpenal code crimes is presently incorporated in K.R.S. 431.060 and K.R.S. 535.020. The penal code set guidelines to classify nonpenal code offenses based on possible sentencing terms in K.R.S. 532.020. An offense is considered the lowest felony, Class D, if the law outside the code provides a sentence to a term of imprisonment in the penitentiary for at least one but not more than five years. The plain meaning of the statute would require that a felony have a minimum sentence of at least one year.
I must disagree with the reasoning of the majority opinion in regard to Davis, supra. As noted by the Court of Appeals, Davis is distinguishable in two ways: First, the Davis court was interpreting Kentucky’s persistent felony statute and, Second, the Ohio felony conviction was defined as a felony under Ohio law. Neither condition is present here. There is no valid reason to overrule Davis.
When the statute is clear the penalty as provided by law should be firmly but fairly^ and equally imposed. However, where there is ambiguity in the statute, the construction should be against the extremely harsh or incongruous result. As the statute existed at the time of this situation, it gave rise to doubt. The rule of lenity is a rule of statutory construction and should not be used primarily as a substitute for leniency.
This case should be limited only to offenses outside the penal code which do not specify whether a violation is a felony or a misdemeanor and which fails to impose a term of imprisonment of at least one year. It does not apply to penal code offenses or statutes which expressly state that the offense is a felony or statutes which impose a minimum sentence of one year or more. The other offenses announced by K.R.S. 6.775 as so denominated are still felonies.