OPINION
THOMPSON, Judge:
Earl Clark appeals the December 11, 2008, judgment of conviction and sentence of the Jefferson Circuit Court finding Clark guilty of one count of receiving stolen property over $800 and sentencing him to two-years’ incarceration, enhanced to five years by virtue of a persistent felony offender (PFO) conviction.1 The two issues presented are whether Clai’k was denied due process when the Commonwealth indicted Clark on the PFO offense during his trial on the underlying substantive offense and whether a Texas misdemeanor conviction can be used as an underlying conviction for Clark’s PFO charge.
Clark was indicted on April 5, 2007, on one count of receiving stolen property over $800. A jury trial occurred on September 24 and 25, 2008. On the morning of September 25, 2008, the Commonwealth informed the trial court that Clark was eligible for a PFO charge and that it was in the process of seeking an indictment. The PFO charge was based on two prior convictions: robbery in the first degree in Jefferson County, Kentucky; and assault dating violence in Travis County, Texas, a Texas misdemeanor, for which Clark was sentenced to one year.
After the jury retired to deliberate on the charge of receiving stolen property over $300 but before a verdict, the PFO indictment was returned, and Clark was arraigned on the charge. Clark’s counsel then moved to postpone any further proceedings on the PFO charge until after the jury returned a verdict on the underlying charge. The motion was granted, and the jury subsequently returned a guilty verdict on the charge of receiving stolen property over $300.
The following day, Clark appeared for the sentencing portion of his trial and announced a desire to enter a conditional guilty plea to the PFO charge as opposed to allowing the jury to set the sentence. The Commonwealth made an offer of two-years’ imprisonment for the conviction of receiving stolen property over $300. In exchange, the PFO charge was amended from first-degree to second-degree, and the Commonwealth recommended the minimum sentence of five years on the charge. Clark accepted the offer conditioned on the right to appeal the PFO charge. Clark also moved the trial court to dismiss the PFO charge on the basis that the Texas conviction was designated as a misdemeanor by that state and, therefore, failed to make him eligible for PFO status. The trial court denied the motion, stating that the term of the sentence, not the designation of the crime by another state, was controlling, and that the Texas charge was therefore appropriately considered for PFO eligibility. A judgment of conviction and sentence was entered finding Clark guilty of receiving stolen property over $300 and sentencing him to two years, enhanced to five years by virtue of the PFO. This appeal followed.
Initially, Clark argues that he was denied due process by the Common[749]*749wealth’s failure to indict him on the PFO charge prior to the commencement of his trial. In response, the Commonwealth argues that the issues regarding the timing of the indictment were not properly preserved and that Clark was not prejudiced.
Regarding the issue of preservation, the record reveals that Clark’s counsel verbally informed the trial court that the issue was being preserved for appeal. However, even if unpreserved, the issue is subject to the palpable error rule.
In Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006), the Court analyzed the palpable error rule.
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error. If not, the error cannot be palpable, (internal quotations and footnotes omitted).
We are persuaded that the timing of the indictment on the PFO charge was so prejudicial to Clark’s defense that the error was palpable and, therefore, we address the substance of Clark’s due process argument.
In Price v. Commonwealth, 666 S.W.2d 749 (Ky.1984), the Kentucky Supreme Court interpreted the PFO statute to require that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice before the trial of the underlying substantive offense. Id. at 750. The Court in Price further stated that “a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.” Id. (quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962)). In Price, the issue was whether the PFO charge must be included in the same indictment as the underlying substantive offense. In this case, the question is whether the Commonwealth could indict on the PFO charge during the trial on the underlying offense without warning, without the opportunity to defend, and without notice to Clark of the severity of the potential penalty should he be found guilty.
Essentially, the Commonwealth ambushed Clark during the trial on the substantive offense with a separate indictment for PFO. To have the evidence to secure the indictment, the Commonwealth was aware of the conviction prior to trial yet failed to provide discovery to Clark, including certified copies of the judgment of conviction. In the Commonwealth’s response to the discovery order, there was no mention of any exhibits, witnesses, or testimony relating to the PFO charges. It is unconscionable and does not comport with the basic notion of due process to return a PFO indictment while a defendant is being tried on the substantive charge. Not only did the Commonwealth leave Clark with no opportunity to prepare a defense to the PFO charge, but any possibility of an informed plea agreement was foreclosed.
At least one court has held that Oyler, quoted by our Supreme Court in Price, did not set the constitutional floor regarding enhancement notices. In Pelache v. State, 294 S.W.3d 248 (Tex.App.2009), the court distinguished Oyler noting that it was presented in a habeas corpus petition. Ulti[750]*750mately, the Texas Court held that basic due process requires that the defendant be informed of the nature of the charges he is accused and the consequences of a conviction before jeopardy attaches so that he is aware of the potential consequences of a conviction and to prepare a possible defense. Id. at 252. We agree with the view expressed by the Texas Court and hold that it is contrary to the basic notion of due process to return a PFO indictment during the trial on the underlying offense.
Because we are reversing and the issue may be presented to the trial court, we address whether Clark’s Texas conviction could be used to support a PFO charge.
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OPINION
THOMPSON, Judge:
Earl Clark appeals the December 11, 2008, judgment of conviction and sentence of the Jefferson Circuit Court finding Clark guilty of one count of receiving stolen property over $800 and sentencing him to two-years’ incarceration, enhanced to five years by virtue of a persistent felony offender (PFO) conviction.1 The two issues presented are whether Clai’k was denied due process when the Commonwealth indicted Clark on the PFO offense during his trial on the underlying substantive offense and whether a Texas misdemeanor conviction can be used as an underlying conviction for Clark’s PFO charge.
Clark was indicted on April 5, 2007, on one count of receiving stolen property over $800. A jury trial occurred on September 24 and 25, 2008. On the morning of September 25, 2008, the Commonwealth informed the trial court that Clark was eligible for a PFO charge and that it was in the process of seeking an indictment. The PFO charge was based on two prior convictions: robbery in the first degree in Jefferson County, Kentucky; and assault dating violence in Travis County, Texas, a Texas misdemeanor, for which Clark was sentenced to one year.
After the jury retired to deliberate on the charge of receiving stolen property over $300 but before a verdict, the PFO indictment was returned, and Clark was arraigned on the charge. Clark’s counsel then moved to postpone any further proceedings on the PFO charge until after the jury returned a verdict on the underlying charge. The motion was granted, and the jury subsequently returned a guilty verdict on the charge of receiving stolen property over $300.
The following day, Clark appeared for the sentencing portion of his trial and announced a desire to enter a conditional guilty plea to the PFO charge as opposed to allowing the jury to set the sentence. The Commonwealth made an offer of two-years’ imprisonment for the conviction of receiving stolen property over $300. In exchange, the PFO charge was amended from first-degree to second-degree, and the Commonwealth recommended the minimum sentence of five years on the charge. Clark accepted the offer conditioned on the right to appeal the PFO charge. Clark also moved the trial court to dismiss the PFO charge on the basis that the Texas conviction was designated as a misdemeanor by that state and, therefore, failed to make him eligible for PFO status. The trial court denied the motion, stating that the term of the sentence, not the designation of the crime by another state, was controlling, and that the Texas charge was therefore appropriately considered for PFO eligibility. A judgment of conviction and sentence was entered finding Clark guilty of receiving stolen property over $300 and sentencing him to two years, enhanced to five years by virtue of the PFO. This appeal followed.
Initially, Clark argues that he was denied due process by the Common[749]*749wealth’s failure to indict him on the PFO charge prior to the commencement of his trial. In response, the Commonwealth argues that the issues regarding the timing of the indictment were not properly preserved and that Clark was not prejudiced.
Regarding the issue of preservation, the record reveals that Clark’s counsel verbally informed the trial court that the issue was being preserved for appeal. However, even if unpreserved, the issue is subject to the palpable error rule.
In Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006), the Court analyzed the palpable error rule.
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error. If not, the error cannot be palpable, (internal quotations and footnotes omitted).
We are persuaded that the timing of the indictment on the PFO charge was so prejudicial to Clark’s defense that the error was palpable and, therefore, we address the substance of Clark’s due process argument.
In Price v. Commonwealth, 666 S.W.2d 749 (Ky.1984), the Kentucky Supreme Court interpreted the PFO statute to require that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice before the trial of the underlying substantive offense. Id. at 750. The Court in Price further stated that “a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.” Id. (quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962)). In Price, the issue was whether the PFO charge must be included in the same indictment as the underlying substantive offense. In this case, the question is whether the Commonwealth could indict on the PFO charge during the trial on the underlying offense without warning, without the opportunity to defend, and without notice to Clark of the severity of the potential penalty should he be found guilty.
Essentially, the Commonwealth ambushed Clark during the trial on the substantive offense with a separate indictment for PFO. To have the evidence to secure the indictment, the Commonwealth was aware of the conviction prior to trial yet failed to provide discovery to Clark, including certified copies of the judgment of conviction. In the Commonwealth’s response to the discovery order, there was no mention of any exhibits, witnesses, or testimony relating to the PFO charges. It is unconscionable and does not comport with the basic notion of due process to return a PFO indictment while a defendant is being tried on the substantive charge. Not only did the Commonwealth leave Clark with no opportunity to prepare a defense to the PFO charge, but any possibility of an informed plea agreement was foreclosed.
At least one court has held that Oyler, quoted by our Supreme Court in Price, did not set the constitutional floor regarding enhancement notices. In Pelache v. State, 294 S.W.3d 248 (Tex.App.2009), the court distinguished Oyler noting that it was presented in a habeas corpus petition. Ulti[750]*750mately, the Texas Court held that basic due process requires that the defendant be informed of the nature of the charges he is accused and the consequences of a conviction before jeopardy attaches so that he is aware of the potential consequences of a conviction and to prepare a possible defense. Id. at 252. We agree with the view expressed by the Texas Court and hold that it is contrary to the basic notion of due process to return a PFO indictment during the trial on the underlying offense.
Because we are reversing and the issue may be presented to the trial court, we address whether Clark’s Texas conviction could be used to support a PFO charge.
PFO conviction and sentencing are governed by KRS 582.080, which states, in pertinent part:
(3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more felonies. 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:
(a) That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefore.]
The Texas conviction which Clark challenges, assault dating violence, is a Class A misdemeanor. V.T.C.A. 22.01. Under Texas law, a misdemeanor is a crime with a maximum penalty of one year confinement in jail. V.T.C.A. 12.21. Although Kentucky uses the term “twelve months” in regard to defining a misdemeanor as opposed to “one year,” our distinction between a misdemeanor and a felony is identical to that codified in Texas. Offenses punishable by a year or more are defined as felonies. KRS 500.080(5). Offenses (other than traffic infractions) are defined as offenses punishable by no more than “a sentence to a term of imprisonment of ... twelve (12) months[.]” KRS 500.080(10). Thus, we are presented with a novel fact situation and a problematic application of KRS 532.080(3).
Clark’s Texas conviction resulted in the imposition of a sentence of precisely one year in the county jail. Under any interpretation of the Texas statute or the Kentucky statute, his prior Texas conviction was a misdemeanor. The issue then is whether KRS 532.080(3) can be read logically and consistent with the legislative intent to transform what is under all pertinent laws a misdemeanor into a felony for the sole purpose of sentencing enhancement. We conclude that such a result is absurd and now clarify the law as to the designation of a felony sentence of one year for purposes of KRS 532.080(3).
Clark is not the first to challenge the use of a conviction entered by a sister jurisdiction used as a basis for a PFO conviction. In Commonwealth v. Davis, 728 S.W.2d 532 (Ky.1987), the conviction used to support the PFO conviction was designated as a felony under Ohio law. The Court rejected Davis’s contention that it could not be used as a basis for the PFO conviction because the sentence imposed was for six months to five years probated for three years. The court deemed the maximum sentence that could have been imposed to be determinative under the Kentucky persistent felony offender statute.
The Court again addressed the issue in Ware v. Commonwealth, 47 S.W.3d 333 (Ky.2001), but on dissimilar facts than [751]*751those now presented. Ware had two prior convictions designated as misdemeanors under North Carolina law; however, each carried a maximum penalty of two years. A sentence of eighteen months probated for three years was imposed on the first conviction and two years probated for three years was imposed on the second. Because both sentences were in excess of one year, the Court held despite the designation as misdemeanors under North Carolina law, the convictions could be used under the Kentucky persistent felony statute. Id. at 334.
The present case is unique in that Clark’s conviction is a misdemeanor offense under Texas and Kentucky law. Although the one-year sentence straddles the line between the length of imprisonment for a misdemeanor and that for a felony, the place of punishment is that for a misdemeanor. We are convinced that our General Assembly did not intend that a misdemeanor offense be arbitrarily converted into a felony classification for the purpose of a PFO conviction.
Our reasoning is consistent with the 1974 Commentary to KRS 532.080(3) as repeated in Ware:
Subsection (2) [now subsections (2) and (3) ] sets forth a definition of a previous felony conviction. It requires in subsection (a) that the previous offense must have been accompanied by a sentence of imprisonment for one year. This requirement seeks to account for the possibility of conviction from a state which has a distinction between felony and misdemeanor that is different from that used in this state. Thus, although such conviction is for an offense designated in that other state as a misdemeanor, it can be treated as a felony for purposes of this statute if it carried a penalty of one year or more. (Emphasis added).
Id. at 334. Except for the merely semantic distinction between “twelve months” and “one year,” Texas and Kentucky distinguish a felony and misdemeanor precisely the same based on the length and place of punishment. Thus, consistent with the commentary to KRS 532.080(3), although it was a one-year sentence, Clark’s conviction is a misdemeanor.
The result reached is consistent with our penal code. Our courts are frequently presented with penalty ranges that are applicable to different classifications of crimes. For instance, under our current statutory scheme, a five-year sentence can be a Class D felony, while another five-year sentence can be a Class C felony. The same is true for the one-year maximum penalty for a misdemeanor or the minimum one-year penalty for a felony. As a consequence, our courts impose felony one-year sentences and misdemeanor one-year sentences. To eliminate any possible confusion regarding whether a foreign conviction to which the defendant was sentenced to one year, we state the rule: A crime for which a maximum sentence of one year or less could be imposed is a misdemeanor and a crime for which the minimum sentence that could be imposed is one year or more is a felony. Therefore, if the sentencing range of a conviction which results in one year or less exceeds one year, it is a felony. Upon motion, the court shall conduct an analysis of the sentencing statute of the jurisdiction wherein the defendant was convicted. If the sentencing range imposes any sentence which exceeds one year, then that sentence is a felony. The one-year sentence imposed in Texas was the maximum sentence within the sentencing range of Mr. Clark’s conviction and, therefore, it is a misdemeanor.
Based on the foregoing, the judgment of conviction and sentence of the Jefferson Circuit Court is reversed.
[752]*752LAMBERT, Judge, Concurs.
WINE, Judge, Concurs in Result Only in Part, Dissents in Part, and Files Separate Opinion.