State v. Ladue

EO.91-313; 160 Vt. 630; 631 A.2d 236




                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-313

                              MARCH TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 2, Chittenden Circuit
                                   }
 Dominic P. Ladue                  }
                                   }          DOCKET NO. 4088-8-90CnCr



              In the above entitled cause the Clerk will enter:


      Defendant Dominic Ladue appeals from a judgment entered after his
 conditional plea of guilty of aggravated assault and violation of Vermont's
 hate-motivated-crimes statute, 13 V.S.A. { 1455.  Defendant challenges the
 constitutionality of 13 V.S.A. { 1455, claiming that the statute violates
 his First Amendment rights, is overbroad and violates his equal protection
 rights.  We affirm.

      Defendant pled guilty to aggravated assault motivated by defendant's
 perception of the victim's sexual orientation.  Section 1455 provides that:

             A person who commits . . . any crime and whose conduct
           is maliciously motivated by the victim's actual or
           perceived . . . sexual orientation shall be subject to
           the following penalties:

           * * *

                (3) If the maximum penalty for the underlying crime
           is five years or more, the penalty for the underlying
           crime shall apply; however, the court shall consider the
           motivation of the defendant as a factor in sentencing.

 Defendant was sentenced to two-and-one-half to six years for the aggravated
 assault and one to four years for the hate-motivated crime.

      Defendant argues that imposing criminal penalties solely because of the
 thoughts that motivated his criminal acts violates the First Amendment.  The
 United States Supreme Court has recently addressed this issue and held the
 opposite.  See Wisconsin v. Mitchell, 61 U.S.L.W. 4575, 4579 (June 11,
 1993).  The Court also held that penalty-enhancement statutes based on
 motivation are not overbroad and do not create a chilling effect on one's
 First Amendment rights.  Id. at 4578.

      Defendant's arguments under Vermont's free speech clause, Chapter I,
 Article 13 of the Vermont Constitution, were not raised at trial and are not
 preserved for appeal.  See In re Mullestein, 148 Vt. 179, 175, 531 A.2d 890, 893 (1987) (state constitutional issue raised for the first time on
 appeal was not properly before Court).

      Defendant also claims that the hate-motivated-crime statute violates
 the federal and state equal protection guarantees.  The State argues that
 defendant waived his federal and state equal protection arguments because he
 failed to specify them at the June 10, 1991 change-of-plea hearing.
 Defendant, however, briefed an equal protection issue and impliedly raised
 it at the hearing.  The equal protection claim that defendant preserved is
 not the one he argues on appeal.  His preserved argument is that the statute
 establishes a class of persons based on race, sex, etc. - - i.e., the
 victims of hate crimes - - and favors them.  The act does not treat
 similarly situated victims differently.  It protects victims and society
 from crimes that are motivated by hate, whether this hate is directed at
 minority or majority members of a class.  See, e.g., Mitchell, 61 U.S.L.W.
 at 4576 (hate-crime penalty imposed on black defendant who sought out white
 victim).  Defendant's argument that the statute singles out a particular
 class of criminal defendants who are motivated by legislatively selected
 bigoted ideas and punishes them more severely than other similarly situated
 defendants was not preserved because it is raised for the first time on
 appeal.  See  In re Mullestein, 148 Vt. at 175, 531 A.2d  at 893.

      Defendant also argues that the sentence is illegal because { 1455 does
 not authorize a separate sentence for the hate-motivated crime, but only an
 enhanced sentence for the underlying crime.  Criminal Rule 11(a) allows
 "review of the adverse determination of any specified pretrial motion."
 V.R.Cr.P. 11(a)(2).  The stipulation for appeal on a conditional plea of
 guilty on the hate-crimes law states:  "The only issue on appeal is the
 validity of the Hate Crimes Law, 13 V.S.A. {1455."  Defendant's challenge to
 the sentence is not before us.

      Affirmed.



                                    BY THE COURT:




                                    Frederic W. Allen, Chief Justice

 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice