OPINION OF THE COURT
Stanley Jackson, III, was convicted in the Fayette Circuit Court of second-degree escape and of being a persistent felony offender (PFO) in the first degree. He was sentenced to five years’ imprisonment for the escape, which was enhanced to twenty years by the PFO conviction. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).
Jackson was indicted by a Fayette County grand jury in December of 1997 for one count of first-degree robbery and one count of being a first-degree persistent felony offender. During his pretrial incarceration, he was released on a six-hour pass and failed to return. He was rearrested on August 10, 1998 and subsequently indicted for second-degree escape. Over Appellant’s objection, the Fayette Circuit Court ordered the robbery, PFO, and escape indictments consolidated for the purpose of trial.
Following a one-day trial, Appellant was acquitted of the robbery charge, but was convicted of second-degree escape. During the penalty phase, the Commonwealth presented evidence of two prior felony convictions, a 1991 conviction of theft by unlawful taking and a 1986 conviction of complicity to first-degree robbery. The jury returned a verdict sentencing Appellant to five years for second-degree escape, enhanced to twenty years pursuant to a guilty verdict on the PFO charge. Appellant asserts two claims of error on appeal, viz: (1) that he was unduly prejudiced by the joinder for trial of his indictments for robbery and escape; and (2) that the PFO charge should have been dismissed.
I. JOINDER.
The jury deliberated for five hours during the guilt phase of the trial, but for only ten minutes during the penalty phase before finding Appellant guilty of first-degree PFO and imposing the maximum enhanced sentence of twenty years. Appellant argues that the jury’s “rush to judgment” in the penalty phase indicates they must have felt “duped” after acquitting him of first-degree robbery in the guilt phase, then learning of his prior convictions of theft and complicity to first-degree robbery during the penalty phase. He posits that the jury concluded that they had mistakenly acquitted him of the robbery, charge and that their decision to impose the maximum enhanced sentence of twenty years was intended as punishment for both the escape and the robbery.
Criminal Rule 9.12 permits two or more indictments to be consolidated for trial if the offenses could have been joined [908]*908in a single indictment. Rule 6.18 permits joinder of two or more offenses in the same indictment if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan. A trial court has broad discretion with respect to joinder and a decision in that regard will not be reversed absent a showing of prejudice and clear abuse of discretion. Cannon v. Commonwealth, Ky., 777 S.W.2d 591, 596-97 (1989).
The joinder clearly did not prejudice Appellant with respect to the robbery charge, because the jury acquitted him of that offense. Nor could it have prejudiced him on the escape charge, because the evidence of the escape was uncontroverted at trial. The same evidence of Appellant’s prior convictions would have been admissible in the penalty phase of Appellant’s trial for escape regardless of joinder. Appellant’s speculation that the jury must have sentenced him to the maximum enhanced penalty because they concluded from his prior convictions that they had mistakenly acquitted him of the robbery charge is simply that—speculation unsupported by any fact in the record. “No conclusion of prejudice ... can be supported by mere speculation.” Kinser v. Commonwealth, Ky., 741 S.W.2d 648, 653 (1987), habeas granted sub nom. on other grounds, Vincent v. Parke, 942 F.2d 989 (6th Cir.1991). The jury’s relatively brief deliberation of Appellant’s penalty virtually precludes the possibility of any re-deliberation of the robbery charge and could as easily be explained by the facts that (1) the penalty phase evidence was uncontroverted, and (2) the jury did not begin their penalty phase deliberations until the late hour of 11:19 p.m.
II. PFO.
Appellant complains that although the first-degree robbery and first-degree PFO charges were contained in the same indictment, the audiotape of the grand jury proceedings does not reflect that any evidence supporting the PFO charge was presented to the grand jury. His pretrial motion to dismiss the PFO count on this ground was denied.
Criminal Rule 5.10 states that “[t]he grand jurors shall find an indictment where they have received what they believe to be sufficient evidence to support it.” Appellant argues that the grand jurors could not possibly have believed that they had received sufficient evidence to support the PFO indictment if no evidence at all was presented to them. This issue was addressed and resolved in Rice v. Commonwealth, Ky., 288 S.W.2d 635 (1956):
[Tjhis court has on several occasions held that the court has no power to go behind an indictment for the purpose of inquiring into the competency of the evidence before the grand jury.... [T]he court will not inquire into the legality or sufficiency of the evidence on which an indictment is based even if it is averred that no legal evidence was produced before the grand jury.
Id. at 638 (citations omitted). Although the Court in Rice was addressing section 107 of the former Criminal Code of Practice and its mandate that the grand jury “receive none but legal evidence,” the logic and rationale of Rice applies as well to the requirement of RCr 5.10. Both rules are “directed to the grand jury and not to the courts,” and therefore it is not for the courts to look behind the face of the indictment. Rice, supra, at 638.
Appellant next cites RCr 5.16(1) which states that “[t]he attorney for the Commonwealth shall cause all of the testimony before a grand jury to be recorded,” and RCr 5.16(2), which states that “[f]ail-ure to have a record made ... shall be ground for dismissal of the indictment un[909]*909less the Commonwealth can show good cause for the failure.” The Commonwealth’s attorney offered no explanation for the failure to record the presentation of the PFO evidence to the grand jury. Appellant asserts that this omission required dismissal of the indictment. However, the rule provides that “[fjailure to have a record made ... shall he ground for dismissal of the indictment.” (Emphasis added.) If dismissal were required under those circumstances, the rule would read: “Failure to have a record made ... shall result in dismissal of the indictment.” The rule was not intended to require automatic dismissal, but only to establish a ground for dismissal with the ultimate decision in that regard left to the sound discretion of the trial court.
The PFO evidence consisted solely of the certified judgments of Appellant’s prior convictions, not, e.g., factual testimony of an eye-witness to an offense.
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OPINION OF THE COURT
Stanley Jackson, III, was convicted in the Fayette Circuit Court of second-degree escape and of being a persistent felony offender (PFO) in the first degree. He was sentenced to five years’ imprisonment for the escape, which was enhanced to twenty years by the PFO conviction. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).
Jackson was indicted by a Fayette County grand jury in December of 1997 for one count of first-degree robbery and one count of being a first-degree persistent felony offender. During his pretrial incarceration, he was released on a six-hour pass and failed to return. He was rearrested on August 10, 1998 and subsequently indicted for second-degree escape. Over Appellant’s objection, the Fayette Circuit Court ordered the robbery, PFO, and escape indictments consolidated for the purpose of trial.
Following a one-day trial, Appellant was acquitted of the robbery charge, but was convicted of second-degree escape. During the penalty phase, the Commonwealth presented evidence of two prior felony convictions, a 1991 conviction of theft by unlawful taking and a 1986 conviction of complicity to first-degree robbery. The jury returned a verdict sentencing Appellant to five years for second-degree escape, enhanced to twenty years pursuant to a guilty verdict on the PFO charge. Appellant asserts two claims of error on appeal, viz: (1) that he was unduly prejudiced by the joinder for trial of his indictments for robbery and escape; and (2) that the PFO charge should have been dismissed.
I. JOINDER.
The jury deliberated for five hours during the guilt phase of the trial, but for only ten minutes during the penalty phase before finding Appellant guilty of first-degree PFO and imposing the maximum enhanced sentence of twenty years. Appellant argues that the jury’s “rush to judgment” in the penalty phase indicates they must have felt “duped” after acquitting him of first-degree robbery in the guilt phase, then learning of his prior convictions of theft and complicity to first-degree robbery during the penalty phase. He posits that the jury concluded that they had mistakenly acquitted him of the robbery, charge and that their decision to impose the maximum enhanced sentence of twenty years was intended as punishment for both the escape and the robbery.
Criminal Rule 9.12 permits two or more indictments to be consolidated for trial if the offenses could have been joined [908]*908in a single indictment. Rule 6.18 permits joinder of two or more offenses in the same indictment if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan. A trial court has broad discretion with respect to joinder and a decision in that regard will not be reversed absent a showing of prejudice and clear abuse of discretion. Cannon v. Commonwealth, Ky., 777 S.W.2d 591, 596-97 (1989).
The joinder clearly did not prejudice Appellant with respect to the robbery charge, because the jury acquitted him of that offense. Nor could it have prejudiced him on the escape charge, because the evidence of the escape was uncontroverted at trial. The same evidence of Appellant’s prior convictions would have been admissible in the penalty phase of Appellant’s trial for escape regardless of joinder. Appellant’s speculation that the jury must have sentenced him to the maximum enhanced penalty because they concluded from his prior convictions that they had mistakenly acquitted him of the robbery charge is simply that—speculation unsupported by any fact in the record. “No conclusion of prejudice ... can be supported by mere speculation.” Kinser v. Commonwealth, Ky., 741 S.W.2d 648, 653 (1987), habeas granted sub nom. on other grounds, Vincent v. Parke, 942 F.2d 989 (6th Cir.1991). The jury’s relatively brief deliberation of Appellant’s penalty virtually precludes the possibility of any re-deliberation of the robbery charge and could as easily be explained by the facts that (1) the penalty phase evidence was uncontroverted, and (2) the jury did not begin their penalty phase deliberations until the late hour of 11:19 p.m.
II. PFO.
Appellant complains that although the first-degree robbery and first-degree PFO charges were contained in the same indictment, the audiotape of the grand jury proceedings does not reflect that any evidence supporting the PFO charge was presented to the grand jury. His pretrial motion to dismiss the PFO count on this ground was denied.
Criminal Rule 5.10 states that “[t]he grand jurors shall find an indictment where they have received what they believe to be sufficient evidence to support it.” Appellant argues that the grand jurors could not possibly have believed that they had received sufficient evidence to support the PFO indictment if no evidence at all was presented to them. This issue was addressed and resolved in Rice v. Commonwealth, Ky., 288 S.W.2d 635 (1956):
[Tjhis court has on several occasions held that the court has no power to go behind an indictment for the purpose of inquiring into the competency of the evidence before the grand jury.... [T]he court will not inquire into the legality or sufficiency of the evidence on which an indictment is based even if it is averred that no legal evidence was produced before the grand jury.
Id. at 638 (citations omitted). Although the Court in Rice was addressing section 107 of the former Criminal Code of Practice and its mandate that the grand jury “receive none but legal evidence,” the logic and rationale of Rice applies as well to the requirement of RCr 5.10. Both rules are “directed to the grand jury and not to the courts,” and therefore it is not for the courts to look behind the face of the indictment. Rice, supra, at 638.
Appellant next cites RCr 5.16(1) which states that “[t]he attorney for the Commonwealth shall cause all of the testimony before a grand jury to be recorded,” and RCr 5.16(2), which states that “[f]ail-ure to have a record made ... shall be ground for dismissal of the indictment un[909]*909less the Commonwealth can show good cause for the failure.” The Commonwealth’s attorney offered no explanation for the failure to record the presentation of the PFO evidence to the grand jury. Appellant asserts that this omission required dismissal of the indictment. However, the rule provides that “[fjailure to have a record made ... shall he ground for dismissal of the indictment.” (Emphasis added.) If dismissal were required under those circumstances, the rule would read: “Failure to have a record made ... shall result in dismissal of the indictment.” The rule was not intended to require automatic dismissal, but only to establish a ground for dismissal with the ultimate decision in that regard left to the sound discretion of the trial court.
The PFO evidence consisted solely of the certified judgments of Appellant’s prior convictions, not, e.g., factual testimony of an eye-witness to an offense. The fact of the prior convictions was uncontro-verted and Appellant does not assert that the information contained in the PFO indictment was incorrect. Thus, he was not prejudiced by the Commonwealth’s failure to record the grand jury evidence. We, therefore, conclude that the trial judge did not abuse his discretion in denying Appellant’s motion to dismiss the indictment.
Appellant further asserts error in permitting PFO enhancement of his sentence for second-degree escape, because the PFO count was contained only in the indictment for robbery and not in the indictment for escape. In Price v. Commonwealth, Ky., 666 S.W.2d 749 (1984), we addressed a similar argument:
While it is true that KRS 532.080 is an enhancement provision and that a present felony conviction is required to trigger its operation, this does not mean that a PFO charge cannot be set out in a separate indictment. If the legislature had intended that PFO charges be presented only in the indictment which charges the underlying substantive offense, it could have set out this requirement in specific terms just as it stated that a defendant’s status as a PFO is to be determined in a proceeding ancillary to the proceeding in which the defendant’s guilt on the substantive offense is decided.
Id. at 750. The facts in Price were slightly different from those herein, in that the PFO charge in Price was the sole count in a separate indictment rendered subsequent to Price’s initial indictment for the underlying offense of robbery. Here, the PFO count was included as a separate count in the initial indictment for robbery, whereas the underlying offense of second-degree escape of which Appellant was ultimately convicted was charged in a separate and subsequent indictment. We regard this factual distinction as immaterial.
We interpret the PFO statute as requiring that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice of this before the trial of the underlying substantive offense. A separate indictment meets this requirement just as does a separate count in the indictment charging the substantive offense to which it refers.
Id. The PFO indictment here, though contained in a separate indictment than that charging the underlying offense of which Appellant was convicted, gave Appellant notice well before trial of the Commonwealth’s intent to seek enhancement of any sentence imposed upon conviction of any underlying substantive offense. As in Price, it is immaterial that the underlying offense was charged in a separate indictment than the PFO charge.
Accordingly, the judgment of conviction and the sentence imposed by the Fayette Circuit Court are affirmed.
COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur.
[910]*910KELLER, J., concurs in part and dissents in part by separate opinion.
STUMBO, J., dissents by separate opinion, with LAMBERT, C.J., joining that dissent and in which KELLER, J., joins in part.