COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72679 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KAVIN LEE PEEPLES : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 6, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-217688 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ARTHUR ELKINS (#0061094) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KAVIN PEEPLES (#0054708) Inmate No. 199-353 Mansfield Correctional Inst. P.O. BOX 788 Mansfield, Ohio 44901 PER CURIAM: Defendant-appellant Kavin Lee Peeples ( appellant ) appeals 2 from the denial of his petition for post-conviction relief. Appellant assigns the following errors for review: . THE TRIAL COURT FAILED TO FILE A FINDINGS OF FACT AND CONCLUSIONS OF LAW WHICH COMPLIES WITH THE MINIMAL REQUIREMENTS FOR SUCH A DOCUMENT. . THE PETITIONER WAS ENTITLED TO SUBMITT (SIC) HIS EVIDENCE IN A SUCCESSIVE PETITION BECAUSE HE WAS PREVENTED FROM PRESENTING THE EVIDENCE ON EARLIER PETIONS, (SIC) AND HE STATED THAT NO REASONABLE JURIOR (SIC) WOULD HAVE FOUND HIM GUILTY. . THE REVISED CODE SECTION 2953.21 AS PRACTICED IN OHIO VIOLATES THE INDIGENT PETITIONERS (SIC) RIGHT TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS UNDER THE U.S. CONSTITUTION. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On September 16, 1987, appellant pled guilty to attempted murder. This court affirmed the decision of the trial court in State v. Peeples (Dec. 22, 1988), Cuyahoga App. No. 54708. Appellant has since spent his time filing numerous motions including those for post-conviction relief, for reconsideration, and to withdraw his guilty plea. In 1989, appellant filed his first petition for post-conviction relief. In that motion, he asserted that his plea was not voluntarily, knowingly, or intelligently made because he was unaware of the affirmative defense of abandonment of effort. A few days after the trial court denied his petition, appellant filed a motion to amend his petition. That motion contended appellant had newly discovered 3 evidence consisting of an emergency room psychiatric evaluation performed shortly after the crime was committed. Appellant argued the failure of his trial counsel to discover this evidence constituted ineffective assistance of counsel. The trial court denied appellant's motion to amend. On January 24, 1990, appellant filed what could be considered his fourth petition for post-conviction relief. Appellant again argued that his guilty plea was based on ineffective assistance of counsel based on the emergency room medical records. Those records were attached to the petition but were not certified or authenticated. The trial court denied appellant's petition stating that the entire record of the proceedings demonstrated that appellant was ably represented by his trial counsel. The trial court filed findings of fact and conclusions of law with regard to this petition. Appellant did not appeal the decision. Appellant's most recent petition for post-conviction relief was filed on September 16, 1996. In this petition, appellant asserted he was denied effective assistance of trial counsel because his attorney did not interview the psychiatrist who examined appellant in the emergency room shortly after appellant attempted to strangle his girlfriend. Appellant appended an affidavit from the examining doctor regarding the results of the examination. The trial court denied appellant's petition for post- conviction relief. The trial court filed findings of fact and conclusions of law in which it decided not to entertain appellant's successive petition as appellant had fully litigated his case, 4 including the issue of ineffective assistance of counsel. II. Appellant's first and second assignments of error will be addressed together. In his first assignment of error, appellant contends the trial court failed to file findings of fact and conclusions of law which adequately explain the reasons for the denial of appellant's petition. Appellant's second assignment of error argues that appellant was entitled to submit a successive petition because the petition was based on evidence which was not available until 1992. In State ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596, the court held that a trial court is not required to file findings of fact and conclusions of law when entertaining successive petitions for similar relief based upon the same facts or on newly discovered evidence. Whether a trial court chooses to entertain a successive petition lies within the sound discretion of the trial court. The trial court in the within case was not required to issue any findings of fact and conclusions of law. Therefore, whether the findings of fact and conclusions of law were adequate or not is immaterial. Further, a review of the extensive filings of appellant pursuant to his conviction for attempted murder support the trial court's ruling denying appellant's petition for post-conviction relief filed on September 16, 1996. Appellant repeatedly has raised the issue of ineffective assistance of counsel based upon the psychiatric evaluation performed shortly after the attempted murder. The trial court did not abuse its 5 discretion by declining to entertain appellant's latest petition for post-conviction relief. Appellant's first and second assignments of error lack merit. III. In his third assignment of error, appellant argues that R.C. 2953.21 violates the due process rights of indigent petitioners. Appellant asserts his due process rights were violated because he cannot afford to fully investigate his claims regarding the psychiatric evaluation that was performed in 1987 or obtain a current evaluation. Appellant contends indigent prisoners must be able to have access to whatever resources are needed to support their claims. A review of the record reveals that appellant never presented this argument below. The failure to raise a challenge to the constitutionality of a statute or its application at the trial court level constitutes a waiver of that issue upon appeal. State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Appellant has waived any assertion of error with regard to the application of R.C. 2953.21. Appellant's third assignment of error is overruled. Judgment affirmed. 6 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 Common Pleas Court to carry this judgment into execution. The defendant's appeal 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. TERRENCE O'DONNELL, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE LEO M. SPELLACY, JUDGE 7 N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .