dissenting.
Respectfully, I dissent.
The Court has gone to extreme length to uphold a penalty phase procedure which is in conflict with the plain language of the statute. The rule of longstanding, identified as the rule of lenity, is that penal statutes are not to be extended by construction, but instead limited to cases clearly within the language used. Commonwealth v. Malone, 141 Ky. 441, 132 S.W. 1033 (1911); see, more recently, Roney v. Com., Ky., 695 S.W.2d 863 (1985). Now we have regressed to the opposite view. So much for enlightenment.
After the jury found the appellant guilty of murder and first-degree robbery, the trial court held a combined hearing on the PFO charge and the penalty to be recommended for the robbery charge. Defense counsel’s specific objections to holding the hearing prior to the penalty phase on the murder charge were overruled.
*312KRS 532.055, the Truth-In-Sentencing statute, by its expressed terms, applies to all felony sentencing hearings except for those “provided for in KRS 532.025.” KRS 532.055(3). Appellant’s sentencing hearing on the murder charge was supposed to be a statutory hearing conducted pursuant to KRS 532.025.
The conclusion that no prejudice results because the death penalty was not imposed is simply specious. Under KRS 532.030(1) and (4), a person cannot be sentenced to life without benefit of parole for a minimum of twenty-five years except in a hearing pursuant to KRS 532.025. Under KRS 532.-025(3) a person cannot be sentenced to either death or to life without benefit of parole for a minimum of twenty-five years except by the procedure specified in KRS 532.025, and except upon a finding of “at least one (1) of the statutory aggravating circumstances enumerated.”
In sum, the defendant has been sentenced under the procedure applicable to a “capital offense,” but in direct conflict with the statutes that apply to such procedure. The statement in the Majority Opinion that nothing was introduced that “could not have been constitutionally introduced in a death penalty case regardless of truth in sentencing,” simply begs the question. The defect is not constitutional, but statutory. The fact that the evidence which the jury had no right to consider came in during the penalty phase for robbery and PFO, which was conducted before the capital phase, rather than in the capital phase, is a meaningless technicality. The appellant’s complaint is that the jury had this improper evidence before it when it considered and decided upon an appropriate punishment for the murder conviction under KRS 532.-025. This complaint is fully justified, and remains unanswered.
By holding the robbery sentencing hearing/PFO hearing before the sentencing phase on the capital murder conviction, the Commonwealth was able to expose the jury to factors which are not to be considered in capital cases. The only fair way to implement both the capital sentencing statute and the truth-in-sentencing statute is to prohibit use of the latter m any stage of a capital case. Alternatively, at the least, the capital penalty phase should be conducted before the truth-in-sentencing statute is invoked so as to exclude prohibited testimony from the jury during its capital phase deliberations. The Majority Opinion seemingly concludes that, at the least, the statutes mandate this alternative. It states:
“In the future, in any case in which the death penalty is sought, the capital penalty sentencing phase pursuant to KRS 532.025 should be conducted before the truth-in-sentencing hearing under KRS 532.055(2) and the PFO proceeding per KRS 532.080 are held.”
Nevertheless, the Majority Opinion inconsistently denies this appellant the benefit of what it declares to be the correct procedure.
The Majority Opinion states, erroneously, that nothing was presented to the jury which could not have been introduced during the capital sentencing phase. However, there was testimony presented concerning the nature of appellant’s prior felonies (burglary and theft) and misdemeanors (forgeries) and information on parole eligibility, none of which fits into the KRS 532.025 requirements for capital cases. This appellant is entitled at a minimum to be sentenced in conformity with statutory procedures, and our Court should see to it that he gets that to which he is entitled by law.
LAMBERT, J., joins in this dissent.