Opinion by
Justice NOBLE,concurring in result only.
I believe that the Appellant has correctly interpreted the effect of KRS 635.020(2) and KRS 640.040(4) that a youthful offender who is convicted only of Class D felonies must be sentenced as a public offender under KRS 635.060. Because Appellant was charged with two Class A felonies, Rape in the First Degree, he was transferred to Circuit Court as a youthful offender. There, he entered into a plea agreement with the Commonwealth that amended the two Class A felonies to Class D felonies. He pleaded guilty to, and was convicted of, eight counts of Sexual Abuse in the First Degree. Under the plain language of KRS 640.040(4), he thus became a juvenile “convicted of ... any felony offense which would exempt him from KRS 635.020.... ” The statute then further states that the juvenile “shall be disposed of by the Circuit Court in accordance with the provisions of KRS 635.060.”
I also believe that by accepting amendment of the Class A felonies to Class D felonies, which is an imminently reasonable act and to which the Commonwealth said it would recommend a total of twenty years, the Appellant did not waive his right to be sentenced under the applicable law.
First, the recommendation of the Commonwealth is not binding upon the court, which may choose to run the several counts consecutively, concurrently, or some mixture of both. Thus the twenty-year recommendation is not even a certain term of the plea agreement, but in fact is only what the Commonwealth will ask the court to consider. If we are to say the Appellant contracted away his rights under the law, then the least requirement must be that the terms are certain, which they are not here. To premise waiver of significant statutory rights upon an essentially unknown term that is at best only a recommendation is simply not the proper application of the law of waiver and is insupportable.
The Commonwealth relies on Johnson v. Commonwealth, 90 S.W.3d 39 (Ky.2002), which does not address this reasoning in regard to what the elements of a plea agreement actually are. Without analyzing what the defendant had actually agreed to, the Court merely stated that he agreed to the sentence. This is clearly an incorrect statement, made because no ar*137gument was put forth about the content of the agreement. Instead, the Johnson Court was focused on whether the trial court was required to make a finding about the validity of the defendant’s ability to make a waiver. Assuming complete agreement with the recommended sentence and failing to consider that such an agreement cannot bind the trial court, the Court found that the trial court had no duty to determine the validity of a waiver because the rights at issue were statutory rather than constitutional. However, the Court made a fundamentally unsound holding based on the misconception that waiver had actually occurred due to the defendant agreeing to a specific sentence when all he actually agreed to was the Commonwealth’s' right to make a recommendation to the court. Neither the defendant nor the Commonwealth can limit the court’s discretion in sentencing. See Misher v. Commonwealth, 576 S.W.2d 238, 241 (Ky.App.1978) (“The sentencing function of our courts on pleas of guilty is carried out by the judge. While the prosecutor and defense counsel, along with the defendant, may discuss and negotiate, they cannot impose sentence by agreement.”). To the extent that Johnson holds otherwise, it should be overruled.
Second, there is clear legislative intent behind the Juvenile Code. Recognizing that in only certain extreme cases should children be treated like adults in the criminal justice system, the legislature designed approaches to children who commit crimes that are more rehabilitative than punitive. Recognizing that the youth of these offenders presages a long life of crime if there is not an intervention, and the lack of criminal culpability ascribed to children, the legislature made some of the juvenile dispositions mandatory. Such is the case with KRS 640.040(4), which requires the Circuit Court to make disposition of a youthful offender who no longer qualifies as such under the public offender provisions. The trial court must apply this statute when applicable, as it is here.
At common law, through the present day, our courts have recognized that children should not be held to the same standard as an adult in criminal matters. This is premised on the belief that children cannot form an adult mens rea in committing criminal acts. This historical belief led to codification of how juveniles should be treated in the criminal justice system, which has at its core rehabilitation through education, treatment and supervision. Juveniles were thus carved out of the Penal Code, and addressed in the Juvenile Code, in recognition of their significant differences from the adult penal population. Thus two significant Codes dealing with criminal matters of two distinct populations were legislated: juveniles and adults.
However, modern society has seen a rise in more heinous crimes being committed by children, which led to concerns about punishment and example. At least in part to address these concerns, the legislature enacted an exception to the Juvenile Code by creating a class of offenders known as youthful offenders, wherein the minor is prosecuted as an adult. Remaining mindful of the strong societal and precedential prohibitions against treating children as adult criminals, the legislature set a high bar for a child to be treated as a youthful offender. There are two steps in this process. First, the child must qualify to be tried as a youthful offender by falling under the requirements of KRS 635.020; then a child may, on conviction, be sentenced as an adult if he is not excluded under KRS 640.040(4). In order to apply case law relating to adults, the child must be qualified as a youthful offender both for purposes of prosecution and sentencing. This exception, with its stringent requirements, is meant to be narrow out of defer*138ence for longstanding views about the lesser culpability of juveniles. Thus, when the Appellant was convicted of offenses that disqualified him from being sentenced as an adult, a different view of the applicability of waiver as described in Johnson was mandated. Because juveniles are treated differently under the law from youthful offenders and adults, there is a greater duty to examine any alleged waiver for its content and applicability.
Third, even if waiver could be made to apply under this scenario, it certainly must be knowing and voluntary. The right the defendant was inferred to have waived in Johnson dealt with calculating a maximum aggregate sentence; here, the Appellant’s very status is at issue, which involves a great deal more than the maximum length of the sentence to be imposed. The Commonwealth did not express in the plea agreement that Appellant was waiving his rights under KRS 640.040(4). Even if it had, the trial court should still be required to conduct a colloquy with the Appellant to make a record that the waiver of such substantial rights was voluntary, which was not done here. It matters not that no one appeared to think of the application of KRS 640.040(4) when plea negotiations were being conducted. The law is the law, and the Commonwealth in particular is held to have knowledge of it.
Fourth, holding otherwise would result in disparate sentencing for juveniles who enter into a plea agreement and those who choose to go to trial. Under the facts of this case, a youthful offender with the same charges could go to trial, obtain the same convictions, and would be entitled to be sentenced as a public offender, where here, the Commonwealth argues Appellant, with the same convictions, should be sentenced to twenty years in prison. Clearly, this takes away most of the incentive to enter into a plea agreement which saves the Commonwealth, the Court and the Appellant significant time and resources. The type of punishment imposed on a juvenile should relate to the conviction that juvenile has, not the plea agreement.
SCHRODER and VENTERS, JJ., join.