concurring in part and dissenting in part:
Although I concur on the other issues addressed by the majority, I must respectfully dissent from the majority’s conclusion that the 2006 “no duty to retreat” self-defense amendments to KRS 503.050(4), KRS 503.055(3), and KRS 503.070(3), cannot be applied retroactively, even though they are mitigating and remedial and Appellant requested their application.
I say this because the majority, relying upon Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky.2001); Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky.2000); Peabody Coal Co. v. Gossett, 819 S.W.2d 33 (Ky.1991); and University of Louisville v. O’Bannon, 770 S.W.2d 215, 217 (Ky.1989), applied the “substantive versus procedural” analysis applicable under KRS 446.080(3), rather than the “remedial” and “mitigating” analysis applicable under KRS 446.110, when the statutory amendment mitigates “any penalty, forfeiture or punishment.”
*762Contrary to the majority’s suggestion, Lawson acknowledges the applicability of KRS 446.110 to any “new law which is ‘certainly’ or ‘definitely’ mitigating,” to wit:
This Court and its predecessor have consistently interpreted KRS 446.110 to require courts to sentence a defendant in accordance with the law which existed at the time of the commission of the offense unless the defendant specifically consents to the application of a new law which is “certainly” or “definitely” mitigating. [However, as Appellant] did not raise any issue in the trial court concerning the new provisions of KRS Chapter 532, he certainly did not consent to the application of the modified provisions.
Lawson, 53 S.W.3d at 550-51 (internal citations omitted). For reasons that the defendant in Lawson had not consented to the application of the newly added seventy (70) year cap on sentencing in KRS 532.110(l)(a), the court did not go on to determine whether or nor the cap was “ ‘certainly’ or ‘definitely mitigating.’ ” Id. at 550. However, the Court answered this question in the affirmative in Cummings v. Commonwealth, 226 S.W.3d 62, 67, 68 (Ky.2007), as the defendant therein had requested its retroactive application.
Vinson dealt only with retroactive application under KRS 446.080(3), as there was no question of mitigation of any penalty, forfeiture, or punishment per KRS 446.110. Vinson, 30 S.W.3d at 168 (“Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application. KRS 446.080(3).”). It dealt with an amendment to the Kentucky Whistleblowers Act, KRS 61.103, which enlarged the substantive rights of employees, as well as the burden of proof of employers. “The amendment changed the causation and weight of evidence components as to what an employee is required to prove successfully to support a claim under the Act. The amendment also required a new burden of proof from the employer in order to successfully defend a claim under the law.” Vinson, 30 S.W.3d at 169. Thus, as there was no question of mitigation of any “penalty, forfeiture, or punishment” under KRS 446.110, the “substantive versus procedural” analysis under KRS 446.080(3) was appropriate. Vinson, 30 S.W.3d at 169.
Gossett, also dealt with KRS 446.080(3), although the Court then strangely found the statute to be “remedial” and thus allowed the requested retroactive application of the amendment enlarging the grounds for a claimant’s reopening under KRS 342.125, and thus lessening his burden by lowering the standard for disability. Gos-sett, 819 S.W.2d at 35-36. Thus, it was mitigating and, therefore, remedial. Id. at 36; see also Miracle v. Riggs, 918 S.W.2d 745, 747 (Ky.App.1996) (“When a statute is purely remedial or procedural and does not violate a vested right, but operates to further a remedy or confirm a right, it does not come within the legal concept of retrospective law nor the general rule [in KRS 446.080(3) ] against the retrospective operation of statutes.” (emphasis added)). Admittedly, these latter opinions dealt only with KRS 446.080(3), yet they are instructive as to what this Court has considered as remedial.
O’Bannon, upheld the denial of retroactive application of a later enacted hospital immunity statute to an existing malpractice action. Again, however, the Court’s, analysis was limited to the “substantive versus procedural” analysis applicable under the general statute, KRS 446.080(3). O’Bannon, 770 S.W.2d at 217
*763KRS 446.080(3) provides that “[n]o statute shall be construed to be retroactive, unless expressly so declared.” However, under KRS 446.080(3), if a statutory change is deemed to be a procedural change, it may be allowed retroactive application. Vinson, 30 S.W.3d at 169.
Under our earlier common law, “the repeal of a statute repealed also the power and authority of a court to enforce a penalty incurred under the statute, and no penalty could be imposed or enforced for a violation of a statute which occurred before its repeal.” Commonwealth v. Louisville & N.R. Co., 186 Ky. 1, 215 S.W. 938, 939 (1919). “This rule [, however, was] modified by section 465, Kentucky Statutes,” now KRS 446.110 as mentioned above. Louisville & N.R. Co., 186 Ky. 1, 215 S.W. at 939
KRS 446.110 provides:
No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
(emphasis added).
Notably, KRS 446.110 and KRS 446.080(3), overlap in application when any new law mitigates any penalty, forfeiture or punishment, and the party affected consents to, or requests, the benefit of the new law. Yet, when they do, KRS 446.110 prevails over KRS 446.080(3). Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky.2000) (“KRS 446.110 is more specific and should prevail over KRS 446.080(3).”). KRS 446.110 thus, “applies to states of cases in which the penalty, forfeiture or punishment is definitely mitigated by the provisions of the new law, and that, when it is so mitigated, the defendant can only avail himself of its provisions by consenting that judgment may be pronounced under the new law.” Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595, 597 (1914) (emphasis added). Plainly, the terminology “penalty, forfeiture or punishment” is rather broad and would undoubtedly include the forfeiture of one’s liberty. Cf. Phon, 17 S.W.3d at 107.
In Phon, the defendant requested the right to be sentenced under the “ ‘new crime bill,’ which added life without parole to the capital sentencing scheme.” Id. In contrast, the Commonwealth argued “that Phon had committed the crimes in 1996 more than two years before the July 15, 1998 effective date of HB 455.” Id. Finding that life without parole “indeed mitigates the death penalty,” this court found the change to be retroactive. Id.
In Bolen v. Commonwealth, 31 S.W.3d 907 (Ky.2000), the defendant sought to take advantage of an amended version of KRS 532.080(8), which barred any violations of KRS 218A.500 from being used as convictions for determination of persistent felony offender status. We found the amendment therein definitely mitigating in that it “eliminates an eligible person’s sentence from being enhanced as a persistent felony offender.” Bolen, 31 S.W.3d at 909. And, in Cummings, 226 S.W.3d at 67, we noted:
[p]ursuant to KRS 446.110, the amendment including the seventy year cap *764may govern his sentence even on those offenses Appellant committed prior to the effective date of that statutory provision.
Id. at 67 n. 3. We then found the seventy year cap applicable. Id. at 68.
Plainly, “[t]he policy of our law, as respects retroactive application of new laws relating to penalties, forfeitures, punishments, rights or' claims, is set forth in KRS ⅛⅛6.110.” Kentucky State Bar Ass’n v. Taylor, 516 S.W.2d 871, 872 (Ky.1974) (emphasis added). Moreover, it is doubtful that one would argue that the sentencing provisions considered in Cummings and Phon, or the limitation on predicates for a finding of persistent felony offender status, as considered in Bolen, are not examples of substantive law.
For a large part of our history, the law in Kentucky was that a person could stand his ground against an aggressor; quite simply, he was not obliged to retreat, nor consider whether he could safely do so. Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d 936 (1931). Gibson, in fact quoted from an opinion of the noted Kentucky jurist and United States Supreme Court Justice, John M. Harlan, in Beard v. United States, 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086 (1895), to wit:
The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.
Thus:
[this] doctrine of the law permeates the opinions of this court, and an instruction [to the contrary] has been condemned in several cases; the more recent one being Caudill v. Commonwealth, 234 Ky. 142, 27 S.W.2d 705[ ].
Gibson, 237 Ky. 33, 34 S.W.2d at 936. Accordingly, in Kentucky, at that time, a defendant was not required to choose a safe avenue of retreat before using deadly force to protect himself. Moreover, the enactment of the 1974 Kentucky Penal Code did not abrogate this view. Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky.2005).
In Hilbert, citing to Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 4 — 2(d)(2) (1998), we noted “[a] proposal by the drafters of the Kentucky Penal Code to change this rule was rejected by the General Assembly and the right of a defender to stand his ground against aggression was left intact.” Hilbert, 162 S.W.3d at 926. Notably, “it is [a] tradition that a Kentuckian never runs. He does not have to.” Id. (citing Gibson, 237 Ky. 33, 34 S.W.2d at 936).
However, “[d]espite the defiant attitude towards retreat exhibited by the Gibson opinion, Kentucky decisions [over the intervening years] have generally not adhered to such an absolute interpretation of the ‘no duty to retreat rule,’ nor did our [more recent] predecessor courtfs] require jury instructions describing the same.” Hilbert, 162 S.W.3d at 926; see also James M. Roberson, New Kentucky Criminal Laxo and Procedure § 313 (2d ed.1927) (stating that “the rule now is that whether the assailant should stand his ground or give back is the question for the jury, and *765that he may properly follow that course which is apparently necessary to save himself from death or great bodily harm.”). Thus, Kentucky, in more recent years, has followed “the principle ‘that when the trial court adequately instructs on self-defense, it need not also give a no duty to retreat instruction.’ ” Hilbert, 162 S.W.3d at 926 (internal citations omitted).
However, as previously noted, effective July 12, 2006, and following the occurrence of the crimes charged herein — but before tlieir trial — the Legislature amended Kentucky’s criminal statutes in multiple places to re-insert this longstanding component of self-defense. SB 38, 2006 Kentucky Laws Ch. 192. KRS 503.055(1) as amended, established a presumption, with some exceptions, that a person has “a reasonable fear of imminent peril of death or great bodily harm” to himself or others when using defensive force against someone unlawfully entering or present in a dwelling, residence or vehicle, or the other person is removing or trying to remove someone therefore against their will. The legislation also codified the pre-existing “no duty to retreat”:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
KRS 503.055(3) (emphasis added). KRS 503.050 was also amended to state “[a] person does not have a duty to retreat prior to the use of deadly physical force.” KRS 503.050(4). Likewise, KRS 503.070 was amended to address the justification of protecting another and now recognizes that a person “does not have a duty to retreat if the person is in a place where he or she has a right to be.” KRS 503.070(3).
Here, the 2006 amendments on the “no duty to retreat” doctrine did not create any new duty or obligation on behalf of the defendant, nor impair any vested right, but only operated in confirmation of his preexisting right. See Hilbert, 162 S.W.3d at 926; see also Riggs, 918 S.W.2d at 747 (“When a statute is purely remedial ... and does not violate a vested right, but operates to further a remedy or confirm a right, it does not come within ... the general rule against the retrospective operation of statutes.” (emphasis added).). Thus, its application was retroactive if there was sufficient evidence to support the instruction.
“A defendant is entitled to have the jury instructed on the merits of any lawful defense which he or she has.” Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky.1997). This “entitlement ... is dependant upon the introduction of some evidence justifying a reasonable inference of the existence of [the] defense.” Id.
Looking at the evidence in a light most favorable to Appellant, the introduction of parts of his confession established that he was standing in the yard and was attacked by McAfee who had a gun. As they were wrestling, Appellant told McAfee, “man, get off of me, man; just get off of me, man. I don’t won’t no problems. I’m trying to leave, man, get off of me.” He then “heard one shot, and [said] I didn’t know where it came to[.] I was protecting myself. I didn’t know if I was hit.” “We was wrestling, and [he] had me. Somehow I managed to grab the gun out of his hand, and, I just remember, I yanked it back, like that.” “And I shot at his leg.”
Since Appellant asked for the instruction under the amendments discussed, and the *766evidence in this case necessarily included an issue of self-defense and thus, an issue as to a “duty to retreat,” it was error not to instruct the jury fully on the relevant law regarding the duty.
As I could not find the error to be harmless under the facts of this case, I would vacate the conviction and remand for a new trial with appropriate instructions including the “no duty to retreat.”