Didier Van Sellner v. State of South Carolina, PCR Win in the SC Supreme Court! Opinion No. 27644 (filed 6/29/16)

June 29th, 2016
Elizabeth Franklin-Best

Justice Hearn authored this opinion granting Van Sellner the right to a new trial.  Van Sellner, upon the advice of counsel, pleaded guilty to armed robbery.  With a prior out of state conviction, Van Sellner was subject to mandatory life in prison had he been convicted at trial.  Concerned about that possibility, he informed the court that he wanted to plead guilty to avoid returning to jail for a prolonged period of time.  He was sentenced to 12 years.  At PCR, Van Sellner alleged his counsel rendered ineffective assistance of counsel because his lawyer did not properly advise him as to the law.

The issue here is what does it take for someone to be guilty of armed robbery in South Carolina when he or she does not actually have a weapon?  S.C. Code Ann. §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 actions or words, he was armed while using a 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 . . ..

In State v. Muldrow, 348 S.C. 264, 559 S.E.2d 847 (2002), the South Carolina Supreme Court established that words alone are not sufficient to establish the presence, or a witness’s reasonable belief of a weapon pursuant to the statute.  In Van Sellner’s case, the Court found that, during the plea hearing, the State did not allege Van Sellner was armed, nor did it allege he took any type of action which would allow a witness to reasonably believe he was armed.  Trial counsel therefore rendered ineffective assistance of counsel for advising Van Sellner to plead guilty, and he is entitled to a new trial.  Hopefully the parties can work out a nice plea for time served to strong armed robbery on their return to the circuit court.

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