dissenting.
Respectfully, I dissent.
Milner v. Commonwealth, Ky.App., 655 S.W.2d 31 (1983), is not dispositive of this case. KRS 532.080(5) was not controlling in determining the result in Milner. Milner addressed the maximum permissible sentence for a defendant convicted of multiple crimes for which consecutive sentences were imposed when that defendant was not a persistent felony offender of any degree. KRS 532.080(5) was not controlling in determining the result in Milner.
In this case, Durham pled guilty to being a second-degree persistent felony offender. The underlying charges were Class D felonies. Pursuant to KRS 532.080(5), the Class D felonies were enhanced to Class C treatment. Under KRS 532.080(5), the maximum sentence for a PFO II is prescribed by KRS 532.060(2), which limits Class C felonies to a ten-year maximum sentence. KRS 532.060(2)(c).
KRS 532.110(l)(c) states that sentences cannot run consecutively so that the aggregate sentences extend beyond the term authorized by KRS 532.080 for the highest class of crime for which any of the sentences are imposed. KRS 532.080(5) in clear, unambiguous words, prescribes that the maximum sentence for a second-degree persistent felony offender is ten years when the underlying felony is a Class D felony. This clearly limits Durham’s sentence to ten years. KRS 532.080(6) referred to in the Majority Opinion is not applicable to this case as it applies only to first-degree persistent felony offenders.
The Court of Appeals’ decision correctly applies the statutes in this case. I would affirm the Court of Appeals.
LEVIN, Special Judge, joins.