¶1dissenting.
¶2I am of the opinion this case should have been decided and affirmed in accordance with RCr 9.24 and 9.26. The interpretation of these rules in Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969), in my view should be controlling here. “What it really boils down to is that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.”
¶3With the factual situation here, in my opinion there is almost a certainty that this jury or any jury would convict even without what the majority opinion concludes is unfair prejudice resulting from the joinder of the charge of possession of a gun by a felon. Prom a review of this record it is apparent that Hubbard does not have a defense. He did not testify here and obviously will not testify on retrial. If the jury was biased or affected by the joinder here, it is not borne out by the record. The jury was admonished as to the limited manner in which it could consider the prior felony convictions. The admonition was apparently effective. The jury found a not guilty verdict on the gun charge and only six-year sentences on the persistent felony offender charges. The penalty for second-degree persistent felony *69offender convicted of a Class D felony is to enhance the penalty to the next highest degree. The penalty for a Class C felony is a minimum of five years and a maximum of ten years. KRS 532.080(5), KRS 532.060(c).
¶4About all that will be accomplished by a new trial is the probability that Hubbard will receive a greater penalty than the one of which he complains.
¶5I also would assess the evidence of guilt here as overwhelming and thus affirm on the authority of Sears v. Commonwealth, Ky., 561 S.W.2d 672 (1979), and Jones v. Commonwealth, Ky., 457 S.W.2d 627 (1970).
¶6The foregoing is assuming an improper joinder. I am of the opinion the joinder was proper, but do not find it necessary to explore this.
¶7Reversing this case for a new trial is a waste of time, accordingly I dissent.
¶8STERNBERG, J., joins in this dissent.