      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                 No. 75758-0-1
                         Respondent,
                                                 DIVISION ONE
       V.

DELFIN SOTO-VIERA,                               UNPUBLISHED OPINION

                         Appellant.              FILED: January 22, 2018

       SPEARMAN, J. — The jury's verdict must support the sentence imposed.

Delfin Soto-Viera challenges his sentence for possession with intent to deliver

cocaine, a class B felony. He argues that the to-convict instruction erroneously

failed to identify the controlled substance and thus only supports a sentence for a

class C felony. We reject the argument because, despite the erroneous

instruction, the jury expressly found Soto-Viera guilty of possession with intent to

deliver cocaine. We affirm.

                                       FACTS

       A police officer observed Soto-Viera exchange a small white rock for

money. Soto-Viera was arrested. He was found to be carrying a small package of

cocaine and over $350 in cash. Soto-Viera was charged with possession of

cocaine with intent to deliver. At trial, Soto-Viera admitted possessing cocaine

but denied selling it.
No. 75758-0-1/2

       The jury received a to-convict instruction that set out the elements of

possession with intent to deliver. The instruction did not identify the specific

controlled substance that was at issue. The jury convicted Soto-Viera. The

verdict form states that the jury found Soto-Viera "guilty of the crime of Violation

of the Uniform Controlled Substances Act — Possession with Intent to

Manufacture or Deliver Cocaine as charged in Count 1." Clerk's Papers(CP)at

18. Soto-Viera received a prison-based drug offender sentence alternative based

on a standard range sentence for delivery of cocaine, a class B felony.

                                    DISCUSSION

       Soto-Viera challenges his sentence. He argues that, because the to-

convict instruction failed to identify the controlled substance, the jury's verdict

does not support a sentence for a class B felony.

       The omission of an element from a to-convict instruction is an error of

constitutional magnitude that Soto-Viera may raise for the first time on appeal.

State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627(2016)(citing State v.

Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005)). We review alleged instructional

error de novo. Id. (citing State v. Brooks, 142 Wn. App. 842, 848, 176 P.3d 549

(2008)).

       A to-convict instruction must include each essential element of the crime.

Clark-El, 196 Wn. App. at 618 (citing State v. Smith, 131 Wn.2d 258, 263, 930

P.2d 917 (1997)). Where the identity of a controlled substance increases the

statutory maximum sentence, the identity of the substance is an essential

element. State v. Goodman, 150 Wn.2d 774, 785, 83 P.3d 410(2004)(citing



                                          2
No. 75758-0-1/3

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000)). The omission of an essential element in the to-convict instruction is

subject to harmless error analysis. Clark-El, 196 Wn. App. at 630-31 (citing State

v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889(2002)). In this case, the parties

agree that the identity of the controlled substance was an essential element of

the crime that the to-convict instruction erroneously omitted.

       Soto-Viera contends that, due to the erroneous instruction, the jury's

verdict does not support his sentence for a class B felony.1 Under both the

federal and the Washington Constitution, the right to a jury trial requires that the

sentence imposed be authorized by the jury's verdict. State v. Williams-Walker,

167 Wn.2d 889, 896, 225 P.3d 913(2010). Where the court imposes a sentence

that is not supported by the jury's verdict, the sentence must be reversed and

resentencing is required. Clark-El, 196 Wn. App. at 624 (citing Williams-Walker,

167 Wn.2d at 900-01).

        In Clark-El, for example, the defendant was tried on a charge of delivery of

methamphetamine, a class B felony. Id. at 617. The to-convict instruction did not

identify the controlled substance. Id. at 619. The jury found Clark-El guilty of the

crime of delivery of a controlled substance. Id. at 618-19. The court sentenced

him for the offense of delivery of methamphetamine, a class B felony. Id. at 618.

On appeal, we considered whether the faulty to-convict instruction required

reversal of Clark-El's conviction and sentence. Id. at 618.


         1 Soto-Viera does not challenge his conviction based on the erroneous instruction. We
note that, at trial, he admitted possessing and using cocaine. There was no dispute as to the
identity of the controlled substance.


                                               3
No. 75758-0-1/4

       As to Clark-El's conviction, we held that the error in the to-convict

instruction was harmless. Id. at 620. But as to his sentence, we held that the

jury's verdict did not authorize the sentence imposed. Id. at 624."The sentencing

judge imposed a sentence as if the jury had found Clark-El delivered

methamphetamine, a class B felony, when the only finding stated in the verdict

was that Clark-El was guilty of the crime of delivery of 'a controlled substance."

Id. Because delivery of an unspecified controlled substance is a class C felony,

we held that the sentencing court erred in imposing a sentence for a class B

felony. Id.

       Soto-Viera contends his case is identical to Clark-El. He is mistaken. In

Clark-El, the only finding in the jury's verdict was that Clark-El was guilty of

delivering a controlled substance. Clark-El, 196 Wn. App. at 624. In this case, on

the other hand, the jury found Soto-Viera "guilty of the crime of Violation of the

Uniform Controlled Substances Act — Possession with Intent to Manufacture or

Deliver Cocaine as charged in Count I." CP at 18. The jury expressly found Soto-

Viera guilty of possession with intent to deliver cocaine. The jury verdict supports

Soto-Viera's sentence for a class B felony.

       Affirmed.

                                                                         -----


WE CONCUR:
                                                     Sf   e6-/-A•w" N_ .



   eatingI



                                          4
