concurring in part/dissenting in part.
I concur in the major portion of the Majority Opinion, which rationally construes the otherwise incoherent parole eligibility terms specified in subsections (2) and (3) of KRS 439.3401. We “conclude that the intention of the legislature was to require service of 50% of a term of years or twelve (12) years, whichever is less, before parole eligibility.” Since I have heretofore, in a number of cases, voiced vehement dissent to the arbitrary, unreasonable and constitutionally unacceptable results which have followed from a literal interpretation of these sections of the truth-in-sentencing (TIS) law, I now join the Opinion that forces a rational interpretation of these two subsections and invites the General Assembly to rewrite the statute coherently if it is dissatisfied with the result.
Nevertheless, respectfully, I must dissent in part from the Majority Opinion because it affirms the decision of the trial court to admit, during the penalty phase of the trial, evidence of convictions of the appellant for offenses committed while he was a juvenile. When, as here, the defendant is tried as a persistent felony offender (PFO), a critical portion of the penalty phase is the conviction and enhancement of the penalty for the underlying offense under the PFO statute, KRS 532.080. Under the PFO statute juvenile convictions are expressly and specifically excluded from consideration.
KRS 532.080(2) provides in pertinent part:
“As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
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(b) That the offender was over the age of eighteen (18) years at the time the offense was committedf.]”
Of course, in KRS 532.055(2)(a)2., the TIS statute purports to permit, without limitation, evidence of “prior offenses for which [the defendant] was convicted,” and of course KRS 532.055 further provides in subsection (3) that “hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080,” the PFO statute. But it should be obvious that a sharp conflict exists if, contrary to the PFO statute, evidence of juvenile convictions is admitted, albeit such evidence may be appropriate under the TIS statute to fixing the sentence on the underlying charge. It is inevitable that such evidence will result in a double enhancement. A decent respect for elementary fairness recognizes that a jury, having heard evidence of juvenile convictions, will be influenced not only to increase the punishment for the underlying offense, which, perhaps, the TIS statute intends, but also to increase the enhanced penalty which follows after the PFO conviction, which the PFO statute expressly prohibits.
The briefs do not suggest that here the jury was advised to consider the juvenile convictions only in fixing the penalty for the underlying offense, and to disregard these convictions in fixing the enhanced penalty as a PFO offender. However, it is hardly likely that such an admonition would accomplish its purpose in any event.
It has always been the law that if statutes are in conflict, the specific should overrule the general. Here the PFO statute is specific and the TIS statute is general. It has always been the law that if there *396is any ambiguity about the proper procedure in a criminal case, the statutes should be interpreted so as to apply the rule of lenity. See Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985); Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980). Our decision disregards both of these principles. The sentencing under the PFO statute is tainted by the evidence which the Commonwealth has offered under the pretext that it conforms to the TIS statute. We should not permit this result in the present case, or in similar cases.
The sentencing portion of the case should be reversed on this ground.