                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                            September 17, 2019




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                              No. 51582-2-II

                                Respondent,

          v.

    CARL LOUIS WARNER,                                         UNPUBLISHED OPINION

                                Appellant.

         CRUSER, J. — Carl Louis Warner appeals his sentence for unlawful delivery of a

controlled substance (methamphetamine). Warner argues that because the trial court’s to-convict

instruction for unlawful delivery of a controlled substance omitted the identity of the controlled

substance (methamphetamine), the trial court erred by imposing a sentence for a class B felony.

The State concedes. We accept the State’s concession and remand for resentencing.

                                              FACTS

         The State charged Warner with one count of unlawful delivery of a controlled substance

after he sold methamphetamine to a law enforcement confidential informant.1 Warner’s case

proceeded to a jury trial. The trial court’s to-convict instruction stated the following:

                To convict the defendant of the crime of delivery of a controlled substance,
         each of the following elements of the crime must be proved beyond a reasonable
         doubt:


1
    RCW 69.50.401(2)(b).
No. 51582-2-II


               (1) That on or about the 13th day of September, 2017, the defendant
       delivered a controlled substance;
               (2) That the defendant knew that the substance delivered was a controlled
       substance; and
               (3) That this act occurred in the State of Washington.

Clerk’s Papers at 25 (Aug. 15, 2018). The trial court also included an instruction informing the

jury that methamphetamine is a controlled substance. The jury found Warner guilty.

       The trial court entered a judgment of guilty of delivery of a controlled substance

(methamphetamine), a class B felony under RCW 69.50.401(2)(b). The trial court sentenced

Warner to 75 months of confinement with 12 months of community custody.

       Warner appeals his sentence.

                                           ANALYSIS

                                  I. TO-CONVICT INSTRUCTIONS

       Warner argues, and the State concedes, that the trial court exceeded its authority by

sentencing Warner as though his conviction for delivery of a controlled substance was a class B

felony where the to-convict instruction failed to identify the substance delivered as

methamphetamine.2 The State concedes that the highest level of crime that the trial court could

have sentenced Warner for was a class C felony. We accept the State’s concession.

       “‘We review the adequacy of a challenged to convict jury instruction de novo.’” State v.

Gonzalez, 2 Wn. App. 2d 96, 105, 408 P.3d 743 (internal quotation marks omitted) (quoting State

v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005)), review denied, 190 Wn.2d 1021 (2018). A jury




2
  Unlike the defendants in State v. Sibert, 168 Wn.2d 306, 311, 230 P.3d 142 (2010), and State v.
Clark-El, 196 Wn. App. 614, 620, 384 P.3d 627 (2016), Warner does not challenge his conviction.
He challenges only his sentence. He agrees, without including it as part of his assignment of error,
that the error as it relates to his conviction is harmless.
                                                     2
No. 51582-2-II


instruction is erroneous if it relieves the State of its burden to prove every element of the crime.

State v. DeRyke, 149 Wn.2d 906, 912, 73 P.3d 1000 (2003).

        A “to-convict” instruction must contain all the essential elements of the charged crime.

State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016). When the identity of the controlled

substance increases the maximum sentence that the defendant may face upon conviction, the

identity is an essential element. Id.

        “‘If a court imposes a sentence that is not authorized by the jury’s verdict, the harmless

error analysis does not apply.’” Gonzalez, 2 Wn. App. 2d at 114 (quoting Clark-El, 196 Wn. App.

at 624-25). When a jury’s verdict does not specify the controlled substance that a defendant

delivers, the only constitutionally authorized sentence is the “lowest possible sentence for delivery

of a controlled substance.” Id. at 624.

        Here, Warner was charged under RCW 69.50.401(2)(b), with unlawful delivery of a

controlled substance (methamphetamine). Delivery of methamphetamine is a class B felony with

a maximum sentence of 10 years. RCW 69.50.401(2)(b). In contrast, delivery of “controlled

substances” is a class C felony with a maximum sentence of 5 years. RCW 69.50.401(2)(c); RCW

9A.20.021.     Thus, the identity of the substance that the State alleged Warner delivered,

methamphetamine, was an essential element of the crime charged because it exposed him to greater

punishment. But the to-convict instruction did not specify the identity of the controlled substance

that the State charged Warner of delivering. Therefore, because Warner’s conviction for delivery

of methamphetamine exposed him to a sentence of 10 years as opposed to a sentence of 5 years

for a conviction for a different controlled substance, the trial court’s omission of the identity of the

controlled substance from the jury instructions was error.


                                                   3
No. 51582-2-II


        We reverse Warner’s sentence and remand for resentencing on the delivery of a controlled

substance under RCW 69.50.401(2)(c).

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    CRUSER, J.
 We concur:



 MAXA, C.J.




 LEE, J.




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