dissenting.
I respectfully dissent from the majority opinion because I believe that Gray v. Commonwealth1 should not be overturned and that the enhanced sentence for the subsequent drug convictions should instead have been amended. I disagree that a defendant can be assigned to the penalty range for Class A felonies regardless of whether the sentences for the prior convictions run concurrently within the same judgement. I agree with the Appellant’s substantive argument that his prior felony conviction should not have been split in order to convict him of being a subsequent trafficking offender and also a persistent felony offender II.
Howard v. Commonwealth2 implied that once felony convictions are merged for PFO purposes, the convictions cannot then be split and used as the basis for further enhancement.3 But it was in Gray that we reached the conclusion that enhancement under both Chapter 218A and KRS 532.080 was improper. Thus an independent conviction is required for a subsequent drug offender enhancement.
However, the majority finds fault in Gray’s reliance upon Howard’s, implicit holding that KRS 532.080(4)’s “merger” of felony convictions must remain merged and in force. The majority refers to this chain of precedent as “faulty” and denies that Howard contains such intention. A look at Howard will show otherwise.
In Howard, the Court stated the defendant was comparing “apples and oranges” in arguing against the splitting of his previous two felony convictions from one misdemeanor conviction.4' However, had the misdemeanor been a felony, Howard would have turned out differently. KRS 532.080(4) provides that:
*565Por the Purposes of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of a crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.5
Had Howard’s misdemeanor been a felony, he would have had three felonies and would then be comparing apples and apples. He would have had “two or more convictions” that would have been “deemed to be only one conviction.” Based upon that, the Gray Court was correct in deciding that Hoioard implicitly held that once felonies are merged, the convictions cannot be split.
Using this logic in Gray, we held that two prior felonies merged by virtue of the concurrent status and could not be split for the purposes of double enhancement.6 There, the appellant was indicted for drug trafficking on two separate occasions, but pled guilty to both crimes on the same date. The trial court entered a consolidated judgment imposing concurrent sentences. Subsequently, the appellant was again charged with trafficking in a controlled substance. The Commonwealth split the previous conviction into two components to enable convictions as both a subsequent trafficking offender and a persistent felony offender. Because this is against the implicit holding of Howard, the split was not permitted and was overturned.
Here, just as in Gray, Morrow’s first conviction resulted in a single final judgment from a single indictment, thus the two prior felonies have merged. There can be no distinction between this case and Gray.
The majority states that had Morrow entered a guilty plea to only one count of first degree trafficking in a controlled substance, he would have been protected by various statutes and the Constitution against attempts by the Commonwealth to use the conviction for both Chapter 218A “second or subsequent offense” enhancement and for PFO enhancement. However, the majority believed that because Morrow instead entered a plea of guilty to two counts, the two convictions can be split for enhancement purposes.
Yet, it is the majority who is now comparing apples and oranges. Morrow’s two felony convictions are to be deemed as one conviction as per both Gray and KRS 532.080(4). As stated by the majority, Morrow is protected from attempts by the Commonwealth to use a single conviction for “second or subsequent offense” enhancement and for PFO enhancement. Because Morrow’s two prior felonies have merged into each other by virtue of a single final judgment, he should thus receive these protections that the majority claim to be available to him.
As such, Gray should still be considered the leading precedent, and turning from it would be turning from the true intentions of Howard. Morrow’s enhanced sentence should have been amended. Because we cannot assume that Morrow has no other prior convictions, this case should be remanded for a new sentencing hearing as per Lockhart v. Nelson.7
. Ky., 979 S.W.2d 454 (1998).
. Ky., 777 S.W.2d 888 (1989).
. See Gray v. Commonwealth, supra note 1 at 456-7.
. See Howard v. Commonwealth, supra note 2 at 889.
. KRS 532.080(4) (underlined emphasis added).
. See Gray v. Commonwealth, supra note 1.
. 488 U.S. 33, 109 S.Ct 285, 102 L.Ed.2d 265 (1988).