I respectfully dissent. In my opinion, respondent is entitled to a new trial as found by the PCR judge.
The state asserts the PCR judge erred in finding that Cartrette received ineffective assistance of counsel because counsel did not request a jury charge that the homicide was a natural and probable consequence of the acts actually agreed upon by Cartrette and his co-defendants. I disagree.
The majority opinion overlooks the following crucial facts. Cartrette testified that he conspired only to commit a nonviolent property crime. Cartrette maintained that Coleman told him that they were going to break into the trunk of a car in which a large amount of money was kept. Further, Cartrette stated that prior to the incident there had never been any discussion about robbing anyone. He was only supposed to drop off Coleman and Long near Wood’s car and wait for them while they broke into it. While the robbery was taking place, Cartrette remained in his car, away from the crime scene.
The trial judge charged the jury, in pertinent part, as follows:
[TJhere is a proposition of law of aiding and abetting, and I charge you, when two or more persons acting with a common design, or intent are present at the commission of the crime, it matters not by whose immediate hands or agency the crime is committed. All are equally guilty. The hand of one is the hand of all, but there must have been a common design, or an intent to commit the crime, and the crime must have been committed pursuant thereto. Mere presence alone is not sufficient. There must be a design or intent.
The jury returned from their deliberations to ask for reinstruction on murder and aiding and abetting. The trial judge repeated the previous instruction and added the following:
Now, I charge you further, that if two or more people combine together to commit an unlawful act, and in the execution of the criminal act, a homicide is committed, by one or more of the actors, as a probable and natural con*23sequence of the acts done, in the pursuance of the common design, all present, participating in the unlawful undertaking are as guilty as the one who committed the fatal act.
The jury returned again and asked “Do all parties involved have to have malice and aforethought (sic) to be guilty of murder?” The judge explained, “the hand of one is the hand of all.”
A juror requested that he again repeat the definition of aiding and abetting and murder. The judge repeated the second instruction above.
The PCR judge found that Cartrette was deprived of a fair trial due to counsel’s failure to request an instruction that the homicide was a natural and probable consequence of the acts actually agreed upon by Cartrette and his co-defendants. See State v. Peterson, 287 S.C. 244, 335 S.E. (2d) 800 (1985); State v. Crowe, 258 S.C. 258, 188 S.E. (2d) 379 (1972).1 Further, the PCR judge found that:
Because of the failure to request this instruction, the court permitted the jury to convict [Cartrette] of murder merely by finding: (1) that [Cartrette] had combined with another to commit the non-threatening crime of breaking and entering of an automobile; and (2) that [Cartrette’s] accomplice thereafter took a life without [Cartrette’s] prior knowledge, approval or assistance. The failure to have a proper instruction on this issue before the jury clearly prejudiced [Cartrette’s] right to a fair trial.
Our holding in Thrift v. State, 302 S.C. 535, 397 S.E. (2d) 523 (1990), seemingly modifies Peterson by holding that a charge similar to the second instruction given here substantially complies with the rule in Peterson. However, Thrift is distinguishable on the facts. Thrift expected a potentially violent encounter and he admitted that he was armed and knew his co-defendant was armed and the victim would at least be “roughed up.” In this case, there was evidence that Cartrette conspired only to commit a nonviolent burglary.
Further, considering that certain portions of the instructions dealing with aiding and abetting were recharged several *24times without any comment as to the requirement of a “natural and probable consequences” finding, the charge was confusing and prejudicial to Cartrette.
In reviewing a grant of PCR, this Court must affirm the ruling of the PCR judge if there is any evidence to support the decision. Cherry v. State, 300 S.C. 115, 386 S.E. (2d) 624 (1989). To establish a claim of ineffective assistance of counsel, the applicant must show that counsel’s performance was deficient and that he was prejudiced by such deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. (2d) 674 (1984).
In my view, there is evidence to support the PCR judge’s finding of prejudice to Cartrette as a result of counsel’s ineffective assistance. Cherry v. State, supra. Accordingly, the PCR judge properly ruled that Cartrette is entitled to a new trial on this issue.
I would affirm the PCR judge’s granting of relief.
I note that Peterson is not new law as it was based on the Court’s decision in Crowe.