COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60590 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION HOWARD CRIM, JR. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-186,185 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LAURENCE R. SNYDER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HOWARD CRIM, JR., pro se Reg. No. 177-567 Post Office Box 4571 Lima Correctional Institution Lima, Ohio 45802 - 2 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Howard Crim, Jr., duly appeals from the judgment of the common pleas court which denied his "Application for a Successive Petition to Vacate." Defendants-appellants Donald Carter and Elbert Jones are hereby dismissed from this appeal for failure to file a brief. App. R. 18(C). Appellant raises two assignments of error for our review. For the reasons that follow, we affirm. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE COURT DECLINED TO DETERMINE THE APPLICATION FOR SUCCESSIVE PETITION TO VACATE BECAUSE APPELLANT WAS DENIED HIS CONSTITU- TIONAL RIGHTS OF REDRESS UNDER O. CONST. ART. I, 16 & U.S.C.A. AMEND. XIV. Appellant argues the trial court committed prejudicial error in denying his "Application for Successive Petition to Vacate." In his brief before this court, appellant argues the trial court abused its discretion in failing to rule on his motion for summa- ry judgment filed in connection with his first petition for post- conviction relief. This argument lacks merit. R.C. 2953.23(A) states as follows: Whether a hearing is or is not held, the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or on newly discovered evidence. - 2 - It is within the sound discretion of the trial court to entertain a second petition for post-conviction relief. State, ex rel. Workman, v. McGrath (1988), 40 Ohio St. 3d 91. Appel- lant's successive petition for post-conviction relief sought such relief on the basis that the trial court failed to rule on his motion for summary judgment in his prior petition for post-con- viction relief. However, a review of the record reveals that the trial court did rule on his motion for summary judgment, denying the same, in a journal entry dated December 12, 1989. In any event, a successive petition for post-conviction relief cannot be used to appeal the trial court's denial of an original petition for post-conviction relief. Accordingly, the trial court did not abuse its discretion in denying appellant's successive petition for post-conviction relief. Appellant's first assignment of error is not well taken. Appellant's second assignment of error is as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED RELIEF 40 MONTHS AFTER FILING OF THE PETITION WITHOUT A HEARING WHICH DELAY VIOLATED THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW UNDER O. CONST. ART. I, 16 & U.S.C.A. AMEND. XIV. Appellant argues the trial court committed prejudicial error in light of a forty-month delay in disposition of his post- conviction petition. However, appellant failed to raise this issue with the trial court. A reviewing court will not consider issues not presented below. Shover v. Cordis Corp. (1991), 61 Ohio St. 3d 213; rehearing denied, 62 Ohio St. 3d 140. - 3 - Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. - 4 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .