Cite as: 506 U. S. 20 (1992)
Blackmun, J., concurring in judgment
"[i]t is the fact of conviction which the Commonwealth seeks to prove in introducing the judgment against a defendant charged as a persistent felon. KRS 532.080 does not specify that the Commonwealth must affirmatively prove both the fact of conviction and that the previous conviction was not obtained by constitutionally impermissible means." Commonwealth v. Gadd, 665 S. W. 2d 915, 917 (Ky. 1984).
I believe that had Kentucky chosen to make being a persistent-felony offender a separate crime, as respondent mistakenly believes that it has, Brief for Respondent 12-13, the Commonwealth would have had the burden affirmatively to prove that the underlying felony convictions were obtained by constitutional means. Under those circumstances, Boykin would not permit the Commonwealth to rely on a silent record. But, because the persistent-felony-offender statute is properly understood to be a sentencing provision, I see no reason why the Commonwealth may not place the burden on the defendant to rebut the presumption of regularity that attaches to the prior convictions. For this reason, I agree that the Court of Appeals has demanded more of the Commonwealth of Kentucky than is constitutionally required.
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