                     THE STATE OF SOUTH CAROLINA 

                          In The Supreme Court 


            Didier Van Sellner, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2014-002472


                         ON WRIT OF CERTIORARI



                        Appeal from Orangeburg County 

                 The Honorable Maite Murphy, Circuit Court Judge 



                              Opinion No. 27644 

                  Submitted May 16, 2016 – Filed June 29, 2016 



                                  REVERSED


            Appellate Defender Laura R. Baer, of Columbia, for
            Petitioner.

            Attorney General Alan M. Wilson, and Assistant
            Attorney General Megan H. Jameson, both of Columbia.


JUSTICE HEARN: Didier Van Sellner pled guilty to armed robbery and later
applied for post-conviction relief (PCR), asserting his counsel was ineffective for
advising him to take a plea deal when the State could not demonstrate all of the
elements of armed robbery. The PCR court denied him relief, finding he received
effective assistance of counsel. We reverse.1

                       FACTS/PROCEDURAL HISTORY

      Van Sellner was charged with armed robbery. After consulting with
counsel, he learned he could be subject to life imprisonment without the possibility
of parole due to his prior convictions in New Jersey and New York for robbery and
various drug offenses. See S.C. Code Ann. § 17-25-45 (2015). As a result of
counsel's advice, Van Sellner decided to accept the plea offered by the State.

       At the plea hearing, the State explained that Van Sellner entered the South
Carolina Bank and Trust (the Bank) in Orangeburg and waited in line to speak with
a teller. When it was his turn, he handed the teller a note "requesting her to give
him [$3,000] in used bills, indicating to her not to give him any dye packs, and that
if she did not comply he would shoot her."2 The teller partially complied by giving
Van Sellner $492. After receiving the money, Van Sellner fled the scene. The
police captured Van Sellner that day wearing the same clothes he had on during the
robbery. Van Sellner confessed to the police and the FBI.

       Following the State's presentation of facts, trial counsel informed the court
that she believed the plea was in Van Sellner's best interest based on his prior
record and the potential that the State could seek life without the possibility of
parole. The trial court asked Van Sellner whether he understood the elements of
armed robbery and confirmed the State had not influenced his plea. Van Sellner
informed the trial court that he wanted to plead guilty because he was trying to
avoid returning to jail for a prolonged period of time.

       Ultimately, the trial court accepted the plea, stating, "I find that there is a
factual basis for you to plead guilty to this charge, and so I am going to accept your
guilty plea at this time." The trial court sentenced Van Sellner to twelve years'
imprisonment.

      Van Sellner subsequently filed for PCR, alleging that because he did not
display a weapon during the robbery, trial counsel incorrectly advised him to plead

1
 We decide this case without oral argument pursuant to Rule 215, SCACR. 

2
 At the PCR hearing, Van Sellner testified the note said, "freeze this is a stick up, I 

have a gun please give me 3,000 dollars in large, loose, bills. No Games or I'll 
 	
shoot." 

to armed robbery. At the PCR hearing, Van Sellner testified the research he
conducted during incarceration revealed his counsel did not properly advise him on
the law. In support, he pointed to other available charges for robbery crimes. He
testified trial counsel told him he was "stuck," and armed robbery was the only
possible crime he could be charged with under the circumstances. Van Sellner
testified it was a "take it[,] or leave it[ and] get life" situation because the armed
robbery charge and sentence could not be reduced given his prior record. Van
Sellner repeatedly testified he did not have a weapon or make any physical
indication that he had a weapon on his person at the time of the robbery.

        Trial counsel testified that there was no evidence that Van Sellner had a gun
during the robbery or made any representation of a weapon. Moreover, she
testified that police reports stated Van Sellner was not armed.

       The PCR court found trial counsel was not deficient for advising Van
Sellner to plead guilty to armed robbery. In denying relief, the PCR court
explained Van Sellner "failed to meet his burden of establishing any deficiency"
because "[b]y passing the teller a note threatening her with a deadly weapon, [Van
Sellner's] conduct comported to the armed robbery statute by alleging with words
that he was armed with a deadly weapon." Further, the PCR court found Van
Sellner could not establish prejudice from the alleged deficiencies "as there [wa]s
no reasonable likelihood that the result of proceeding would have been different or
that [Van Sellner] would have proceeded to trial."

      Van Sellner filed a petition for a writ of certiorari, which this Court granted.

                                  ISSUE PRESENTED

      Did the PCR court err in denying Van Sellner's application for PCR based
on plea counsel's advice to him to plead guilty to armed robbery when the evidence
demonstrated Van Sellner's actions during the robbery did not support a conviction
under S.C. Code Ann. section 16-11-330(A) (2015), as analyzed in State v.
Muldrow, 348 S.C. 264, 559 S.E.2d 847 (2002)?

                            STANDARD OF REVIEW

      This Court gives great deference to the factual findings of the PCR court and
will uphold them if there is any evidence of probative value to support them.
Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013). Questions of law
are reviewed de novo, and we will reverse the PCR court's decision when it is
controlled by an error of law. Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 123,
127 (2014).

                                   LAW/ANALYSIS

       Van Sellner argues he was denied his Sixth Amendment right to effective
assistance of counsel because plea counsel advised him to plead guilty to the
offense of armed robbery even though the facts did not support a conviction for
armed robbery. We agree.

       "An ineffective assistance claim has two components: A petitioner must
show that counsel's performance was deficient, and that the deficiency prejudiced
the defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003). The two-part test also
"applies to challenges to guilty pleas based on ineffective assistance of counsel."
Hill v. Lockhart, 474 U.S. 52, 58 (1985). "A defendant who enters a plea on the
advice of counsel may only attack the voluntary and intelligent character of a plea
by showing that counsel's representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel's
errors, the defendant would not have pled guilty, but would have insisted on going
to trial." Holden v. State, 393 S.C. 565, 572, 713 S.E.2d 611, 615 (2011)
(emphasis added) (quoting Rolen v. State, 384 S.C. 409, 413, 683 S.E.2d 471, 474
(2009)).

      In addressing the adequacy of a PCR applicant's guilty plea, it is proper to
consider both the guilty plea transcript and the evidence presented at the PCR
hearing. Id. at 573, 713 S.E.2d at 615 (citing Suber v. State, 371 S.C. 554, 558,
640 S.E.2d 884, 886 (2007)). "[T]here is a strong presumption that counsel
rendered adequate assistance and exercised reasonable professional judgment in
making all significant decisions in the case." Edwards v. State, 392 S.C. 449, 456,
710 S.E.2d 60, 64 (2011).

        Under section 16-11-330(A)3 of the South Carolina Code (2003), the State

3
    Section 16-11-330(A) states:

        A person who commits robbery while armed with a pistol, dirk,
        slingshot, metal knuckles, razor, or other deadly weapon, or while
        alleging, either by action or words, he was armed while using a
may prove armed robbery by establishing the commission of a robbery and either
one of two additional elements. The State must prove either (1) the robber was
armed with a deadly weapon, or (2) the robber alleged he was armed with a deadly
weapon, either by action or words, while using a representation of a deadly weapon
or any object which a person during the commission of a robbery would reasonably
believe to be a deadly weapon. See id.

       In State v. Muldrow, this Court addressed whether words alone are sufficient
to establish the presence or a witness's reasonable belief of a deadly weapon under
16-11-330(A). 348 S.C. 264, 559 S.E.2d 847 (2002). There, Muldrow entered a
convenience store and gave the clerk a note that read, "Give me all your cash or I'll
shoot you." Id. at 267, 559 S.E.2d at 849. The clerk asked Muldrow if he was
serious, to which Muldrow responded affirmatively and told her to hurry up before
he shot her. Id. In reviewing the plain language of 16-11-330(A), this Court found
that words alone are not sufficient to support a conviction for armed robbery. Id. at
269, 559 S.E.2d at 849–50. As a result, this Court held the State must show
"evidence corroborating the allegation of being armed, i.e., the use of a physical
representation of a deadly weapon, to establish armed robbery." Id.

       Here, the facts presented by the State do not include the requisite
corroborating evidence for armed robbery. During the plea hearing, the State did
not allege Van Sellner was armed, nor did it allege Van Sellner took any type of
action which would allow a witness to reasonably believe he was armed. The State
also failed to introduce any evidence to address the adequacy of Van Sellner's
guilty plea at the PCR hearing. In neither proceeding did the State present
sufficient evidence to satisfy the test set forth in Muldrow. Therefore, plea
counsel's advice to Van Sellner that he could be convicted of armed robbery
without proof of a physical representation of a deadly weapon rendered counsel's

      representation of a deadly weapon or any object which a person
      present during the commission of the robbery reasonably believed to
      be a deadly weapon, is guilty of a felony and, upon conviction, must
      be imprisoned for a mandatory minimum term of not less than ten
      years or more than thirty years, no part of which may be suspended or
      probation granted. A person convicted under this subsection is not
      eligible for parole until the person has served at least seven years of
      the sentence.

(Emphasis added).
performance deficient, and the PCR court erred in finding plea counsel effective.

                                 CONCLUSION

     Based on the foregoing, we reverse the PCR court's denial of relief and grant
Van Sellner a new trial.

     BEATTY, KITTREDGE and FEW, JJ., concur. PLEICONES, C.J.,
concurring in result only.
