The petitioner, William Howard, is before this Court appealing from the denial of his pro se petition for relief under Post-Convietion Relief, Rule 1. He was convictеd by a jury of burglary and was found to be a habitual offender. He is serving a term of life imprisonment. We affirmed his conviction in Howard v. State, (1978)
1. Whether it was fundamental error when thе trial court permitted petitioner to appear at trial in leg shackles;
.2. Whether the trial court erred in allowing defendant to proceed pro se in the post-conviction proceedings; and
8. Whether Indiana's habitual offender statute is unconstitutional.
We note that in post-conviction proceedings our rules place the burden upon the
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petitioner to establish his grounds for relief by a preponderance of the evidence. Ind. R.P.C. 1 § 5; Rinard v. State, (1979)
I.
The record shows that petitioner did not raise the issue of his appearance in leg shackles in his direct appeal or in this petition for post-conviction relief but has raised it for the first time in his brief on this appeal. He cites remarks from the trial court at the time of the jury selection proceedings which show that he was to remаin in leg shackles but would already be seated when the prospective jury members came in. The record shows that the court was concerned about the рossible disruption of the proceedings if petitioner was not restrained to some extent. There apparently was no objection to this procedure from petitioner at that time.
-It is well settled that issues which are not raised either at the trial level, on appeal, or in a post-conviction petition are waived. Ind. R.P.C. 1 § 8; Dull v. State, (1978)
IL.
Defendant next contends that the trial court erred in allowing him to proceed without counsel at the post-conviction relief hearing. However, the record shows thаt petitioner never asked for the assistance of counsel. He filed an affidavit of indigeney in order to file his petition without paying any court costs. He told the court that he did not have money to hire private counsel and that he wanted to proceed without counsel. The record shows that the court suggested that petitioner could ask for legal help from the public defender's office or a legal services organization, but the petitioner replied that he had not been satisfied with the attorneys that had been appointed for him because they didn't want to bring up the points in the trial that he wanted brought out. The judge stated that hе felt that petitioner had been represented by competent, skilled counsel at his trial and on his direct appeal.
It is clear from the record that petitioner was not being forced to appear without counsel but wanted to proceed pro se. Our rules expressly provide this right to a petitioner during post-conviction relief proceedings. Ind. R.P.C. Relief, Rule 1 § 9. The record shows that petitioner was clearly familiar with our appellate system, knowingly and intelligently wаived his right to counsel, and expressly stated he wanted to proceed without counsel. We have consistently found that it is not error to allow an accused tо represent himself when that is his knowing and voluntary choice. Nation v. State, (1983) Ind.,
II.
Defendant finаlly argues that Indiana's habitual offender statute is unconstitutional as it was applied to him. This Court has considered many challenges to the habitual offender statute, Ind. Cоde § 35-50-2-8 (Burns 1984 Supp.), and we have found that the bifurcated trial procedure does not vio
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late an accused's right to be tried by a fair and impartial jury and that the statute does not impose cruel and unusual punishment or otherwise violate constitutional standards. Funk v. State, (1981) Ind.,
Petitioner now specifically argues that his sentence for life as a habitual offender upon a conviction for the nonviolent crime of burglary and a prior history of two other nonviolent crimes is cruel and unusual punishment. He was sentenced under our prior habitual offender statute which provided for a mandatory sentence of life imprisonment. Ind. Code §35-8-8-1 (Burns 1975). This Court has considered this аrgument in other cases and we have held that a life sentence is not excessive when imposed after a defendant's third felony conviction even if such felоnies do not involve violence. Norris v. State, (1979)
Petitioner now argues that we must reconsider the constitutionality of his life sentence in light of the recent United States Suрreme Court case of Solem v. Helm, (1983)
However, the Court also noted that:
"it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the аppellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproрortionate."
Solem v. Helm, - U.S. at -,
We find that the crime in this case was a serious one since there was the potential threat of violence to persons who might have been present in the building еntered, and the object of the burglary was to remove the business's safe. While petitioner's prior crimes could be classified as nonviolent, they were also sеrious crimes of burglary and possession of heroin. Furthermore, we find that other individuals in this state are serving life sentences for crimes of theft, forgery, and burglary when they have been found to have two or more prior felony convictions.
We have long recognized that the purpose of the habitual offender statute is to morе severely penalize those persons whom prior sanctions have failed to deter from committing felonies. Whitacre v. State, (1980) Ind.,
For all of the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.
Judgment affirmed.
Notes
. Petitioner incorrectly cited this case as Helm v. Dakota.