dissenting.
Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995), could not have been more clear. It involved the attempted suppression of two prior felony convictions by the defendant therein on the ground that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), had been violated. A hearing was held on that motion to suppress and the motion overruled! The specific grounds for the motion was the failure to be advised of his Sixth Amendment right to confront his accusers. We looked at McGuire v. Commonwealth, Ky., 885 S.W.2d 931 (1994), wherein we had adopted the reasoning of Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and held that proof of PFO status in this state requires only proof of the fact of previous felony conviction, not proof of the underlying validity of those convictions. Webb, supra at 229. We then quoted McGuire’s holding that:
Kentucky trial courts are no longer required to conduct a preliminary hearing into the constitutional underpinnings of a judgment of conviction offered to prove PFO status unless the defendant claims “a *209complete denial of counsel in the prior proceeding.”
Id,
We then reached the holding of the Webb case:
The appropriate remedy to challenge the 1985 and 1991 guilty pleas is through a CR 11.42 proceeding and the Respondent “ ‘may ... apply for reopening of any ... sentence [thus] enhanced.’” McGuire, 885 S.W.2d at 937 n. 1 (quoting Custis, 511 U.S. at 496-97, 114 S.Ct. at 1739).
Id. (emphasis added).
Now, if you can only challenge a prior conviction for the complete lack of counsel when that conviction is being used to prove PFO status, Appellant herein did exactly what this Court told him to do: he filed an RCr 11.42. As Justice Vance said in his dissenting opinion in Howard v. Commonwealth, Ky., 777 S.W.2d 888, 890 (1989):
Does the majority opinion mean that one who fails to raise validity of a prior conviction at his first opportunity to do so, cannot thereafter ever raise the question—if so, RCr 11.42 will become meaningless unless the prior conviction is attacked on the next day following the entry of judgment.
We have nearly reached the point that, having complicated this process with every opinion we render on the subject, the most conscientious of counsel is uncertain of whether to raise a challenge, what type of challenge is appropriate and what court to file in. I dissent.
LAMBERT, J., joins this dissenting opinion.