38
Blackmun, J., concurring in judgment
395 U. S. 238 (1969). I write separately, however, to emphasize that I agree with this conclusion only because Kentucky's persistent-felony-offender statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), is a sentencing provision rather than a statute creating a separate criminal offense.
The persistent-felony-offender provision is located not in the substantive criminal offense chapters of the Kentucky Revised Statutes but as part of chapter 532, where the offense classifications and the respective penalties are located. Section 532.080 is entitled "Persistent felony offender sentencing," and it is specifically concerned with enhancing the penalty that would otherwise follow from a conviction on the underlying criminal offense. In respondent's case, for example, his persistent-felony-offender status enhanced the punishment normally associated with a second-degree robbery conviction—at least 5 but not more than 10 years imprisonment—to a minimum of 10 and a maximum of 20 years. § 532.080(6)(b).
The Supreme Court of Kentucky has described the persistent-felony-offender statute:
"There is no additional punishment imposed by a persistent felony offender conviction, merely a more severe punishment. KRS 532.080 does not create or define a criminal offense. It recognizes a status and, in a proceeding separate and apart from the initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial." Hardin v. Commonwealth, 573 S. W. 2d 657, 661 (Ky. 1978).
See also Malicoat v. Commonwealth, 637 S. W. 2d 640, 641 (Ky. 1982). Under Kentucky law, the Commonwealth has the burden of proving beyond a reasonable doubt each "element" of the offense of being a first-degree persistent-felony offender. Hon v. Commonwealth, 670 S. W. 2d 851, 853 (Ky. 1984). However,
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