Concurring in Result Only in Part and Dissenting in Part:
Contrary to the Commonwealth’s position, it is clear from both the written record as well as the plea sheets which are included in the record, that Clark properly preserved two issues for our consideration, to wit: the denial of due process by the return of a second indictment charging him with the PFO I enhancement during trial; and the failure to prove that an out-of-state conviction qualified as a felony. During the plea colloquy, Clark’s defense counsel discussed with the trial judge the problem with defending against a new indictment returned during the second day of jury trial. Further, the plea agreement, signed by the Commonwealth’s Attorney, states in part, “[Defendant] waives right of appeal to trial. [Defendant] retains right to appeal PFO II.” Clearly, the Commonwealth could have limited the scope of the issues preserved for appeal. It is not necessary to engage in a palpable error analysis under Kentucky Rule of Criminal Procedure (“RCr”) 10.26, as the majority has done. Our Supreme Court has previously found that such language, even if inartfully drawn, is sufficient to preserve the issue for appellate review when a conditional plea is entered pursuant to RCr 8.09. Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky.2009); Gabbard v. Commonwealth, 887 S.W.2d 547 (Ky.1994).
In support of his due process argument, Clark cites to Price, supra, which states, in part: ‘We interpret the PFO statute as requiring that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice of this before the trial of the underlying substantive offense.” Id. at 750. The Court in Price further states:
... [D]ue process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding (Citation omitted).
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.
Id. at 750, quoting Oyler v. Boles, 368 U.S. at 452, 82 S.Ct. at 503. Accordingly, the Court in Price, via the language of Oyler, indicated that the only requirements are reasonable notice and an opportunity to be heard. The Court in Price further stated “[i]f Price did need more time to adequately prepare his defense to the PFO charge in this case, he could have requested a continuance for this purpose. The record reflects that Price did not challenge the Commonwealth’s evidence on the PFO charge.” Id. at 750 (Emphasis added).
Likewise, Clark did not request a continuance from the trial court in order to prepare a defense to the PFO charge. A short continuance of the jury trial between the substantive and penalty phases could easily have been accomplished. Clark challenged the use of the Texas offense as a basis for the PFO charge. However, other than a general motion to dismiss the PFO indictment, he failed to request any relief whatsoever from the trial court. It would be inappropriate for us to now grant Clark relief which was never requested from the trial court.
The majority addresses the issue of initial trial discovery. In response to the trial court’s discovery order, the Commonwealth filed a response which itemized Clark’s prior criminal record. That information apparently did not include Clark’s *753previous, PFO-qualifying convictions. Presumably, Clark was aware of his own criminal record. He did not request further discovery of that issue and we must therefore assume that he was satisfied with what was provided by the Commonwealth. Furthermore, the record reveals that Clark’s prior convictions were mentioned by the Commonwealth, Clark, and Clark’s counsel, during several bond reduction hearings on May 24, 2007, November 7, 2007, and March 18, 2008. While the majority is of the opinion that the Commonwealth “ambushed” Clark, I do not agree. In fact, it appears that Clark’s trial counsel does not even share this belief. Such an allegation was not raised in Clark’s brief, and the record reveals that his counsel stated to the trial judge, “I do not allege that there was any intentional withholding or sandbagging by the Commonwealth. Quite the contrary, they have been forthcoming and forthright with me in this case.” There have been no allegations of prosecutorial misconduct, and I will not formulate such an argument where one does not exist.
I certainly agree that the Commonwealth’s timing of the PFO indictment was not good practice. Had the PFO indictment been returned prior to trial, both defense counsel and the Commonwealth would have had ample opportunity to adequately research the Texas penal code, most likely reaching the result set out below. The majority believes that the late indictment foreclosed Clark’s possibility of an informed plea agreement. However, there is no absolute right to a plea agreement. Such agreements are at the discretion of the Commonwealth. The majority’s opinion makes the presumption that, if the PFO indictment had come sooner, a different plea offer would have been made and accepted by Clark. Clark had not pled guilty before the PFO indictment was returned, nor did he plea unconditionally after being so charged, preferring rather to preserve his right to appeal. Such an opinion by the majority is purely conjecture and fails to rise to the level of reversible error. Therefore, I dissent from the majority opinion that Clark’s due process rights were violated.
I do concur, although for different reasons, with the majority’s opinion that the Commonwealth failed to prove that Clark’s 2003 conviction from Texas constituted a felony under Texas or Kentucky law.
Clark was convicted on September 15, 2003, in “The County Court at Law No. 4, Travis County, Texas”.2 A form styled, “Judgement (sic) of Community Supervision” states that Clark was found guilty of “Assault Dating Violence”, and further states that “the Court assesses punishment at confinement in the Travis County Jail for a period of (1) year and a fine of $2500 ...” While the form is pre-printed, the offense, the sentence of imprisonment, and the fine'are all handwritten.
The V.T.C.A., Penal Code § 22.01 defines various assaultive offenses, as follows:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
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(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
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(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b),3 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
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Neither the Texas judgment nor the Commonwealth during Clark’s 2008 plea of guilty offered any proof that the aggrava-tors delineated in V.T.C.A., Penal Code § 22.01(a)(2)(A) or (B) applied. Additionally, pursuant to the V.T.C.A., Penal Code § 12.34, a person “adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.” Clark received only a one year sentence, clearly less than the punishment designated for Assault Dating Violence, third-degree felony. Finally, the V.T.C.A., Penal Code § 1.07, defines a felony as “an offense so designated by law or punishable by death or confinement in a penitentiary.” (Emphasis added.) The judgment of conviction sentenced Clark to confinement in the Travis County Jail.
In contrast, V.T.C.A., Penal Code § 12.21, directs that a Class A Misdemean- or is punishable by, “(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.”
Thus, by definition and application, Assault Dating Violence for which Clark was convicted, must be a misdemeanor under the Texas Penal Code.
For purposes of Kentucky’s PFO statute, a previous sentence must be for a “term of imprisonment of one (1) year or more or a sentence to death”, contemplating those offenses which are punishable by at least one year. The commentary to KRS 532.080 notes, “Thus, although such conviction is for an offense designated in that other state as a misdemeanor, it can be treated as a felony for purposes of this statute if it carried a penalty of one year or more.” (Emphasis added.) It is inconceivable that a clerical entry on the judgment from Travis County, Texas, stating “(1) year” could increase the punishment set by the Texas legislature which mandates the punishment “not exceed one year”.
*755Thus, I concur with the majority that Clark’s conviction as a PFO must be reversed as the Texas conviction was for a misdemeanor offense, and the previous conviction in Kentucky falls outside of the statutory time dictates of KRS 532.080.
. Vernon’s Texas Statutes and Codes Annotated ("V.T.C.A.”) § 25.2292. Travis County Court at Law Provisions provide in part: "... (c) In addition to the jurisdiction provided by § 25.0003 and other law, the County Court at Law Number 4 of Travis County has concurrent jurisdiction with the district court in state jail felony and third degree felony cases involving family violence, as defined by Section 71.004, Family Code. The court shall give preference to cases in which family violence is alleged, including cases under Title 4, Family Code."
. V.T.C.A., Family Code § 71.0021, states that, "(a) 'Dating violence’ means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.”