[Cite as State v. Valdez, 2024-Ohio-3357.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO,

Appellee,

 - vs -

SIMON PETER VALDEZ,

Appellant.

:

:

:

:

:

:

CASE NO. CA2023-11-015

O P I N I O N

9/3/2024

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS

Case No. 22CR013917

Martin P. Votel, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant 

Prosecuting Attorney, for appellee.

Kirsten Knight, for appellant.

HENDRICKSON, J.

{¶ 1} Appellant, Simon Peter Valdez, appeals his conviction in the Preble County 

Court of Common Pleas following his guilty plea to rape. For the reasons set forth below, 

we affirm his conviction. 

{¶ 2} Appellant was indicted on June 6, 2022, on two counts of rape in violation 

of R.C. 2907.02(A)(1)(c) and (B), felonies of the first degree, and two counts of gross 
Preble CA2023-11-015

- 2 -

sexual imposition in violation of R.C. 2907.05(A)(5) and (C)(1), felonies of the fourth 

degree. The charges arose out of allegations that appellant engaged in sexual conduct 

with a woman who was not his spouse and who did not have the ability to resist or whose 

consent was substantially impaired because of a mental condition, and appellant had 

reasonable cause to know of the impairment. Appellant admitted to an investigator officer 

that he and the victim had engaged in oral sex together. 

{¶ 3} Appellant was appointed counsel and initially entered a not guilty plea to the 

charges. On November 22, 2022, at appellant's request, the court appointed new counsel 

for appellant. Following discovery, the retention of an expert who conducted an 

independent evaluation of the victim's mental condition, and plea negotiations, the 

defendant appeared before the trial court on October 9, 2023 to change his plea. 

Appellant agreed to plead guilty to a single count of rape in violation of R.C. 

2907.02(A)(1)(c) in exchange for the remaining offenses being dismissed and the state 

agreeing to cap its sentence recommendation at nine years. The trial court began its 

Crim.R. 11 plea colloquy. After the state laid out the agreement and introduced a written 

plea waiver, the court asked appellant whether the terms in the plea waiver were 

acceptable to him. The following discussion then occurred: 

THE COURT: And are those terms acceptable to you?

[Appellant]: No, sir.

THE COURT: Let me try again –

[Appellant]: I do not accept 'em. 

THE COURT: You—okay you do not want to plead today? 

[Appellant]: I do, but I would like to address the Court, Sir, 

please. 

THE COURT: Tell your Attorney what you intend to say 

because I don't want you to say something that might hurt your 
Preble CA2023-11-015

- 3 -

interest. So go ahead and talk to [defense counsel]. 

{¶ 4} Following a conversation between appellant and defense counsel, counsel 

addressed the court, explaining that appellant had "frustrations regarding prior Counsel 

and the – the delays that came as a result of that, beginning the case, prior to [his] 

involvement." Appellant was also unhappy with continuances that happened after his 

new counsel has been appointed and new counsel had requested an evaluation of the 

victim. Appellant interrupted his counsel's explanation to ask that he be given new 

representation. 

[Appellant]: Your Honor, may I speak, please? I wanna get 

rid of him and I – I need a new lawyer. That's why I need to 

address the Court. 

THE COURT: I'm – I – what reason would you want to . . . 

have new counsel?

[Appellant]: [I]n May, when I was supposed to have pretrial, 

he came made a deal to hire the forensic psychologist. I 

talked to him on that date and he told me it'd be just a minute 

or two, take patience, never told me that they postponed my 

trial till this time of year, five months later, I received it through 

the Court's on the 17th of May. 

. . . 

[H]e didn't, tell me about my trial bein' postponed that far, 

cause I asked him, he said it'd be just a lil' while, just hang 

tight. . . . 

THE COURT: Mr. Valdez . . . I'm going to cut you off because 

what you're saying is not relevant to what we're doing here 

today. 

[Appellant]: Well, he – so Friday we made the – the meeting 

–

THE COURT: I'm going to talk to you about, just for a moment, 

about the hiring of the expert. We have to hire psychological 

experts all the time . . . and things like that, those people are 

few and far between anymore, there are not nearly the people 

who are willing to entertain those kind of evaluations and 

appear in court as we used to have, and it takes a long time. 

So that was a request that was made, that was – had nothing 
Preble CA2023-11-015

- 4 -

to do with [second appointed counsel]. 

[Second appointed counsel] is an excellent lawyer, a very 

ethical lawyer, I've dealt with him for years and years and 

years, I am not going to grant your request for a new attorney. 

[Appellant]: Well, I'm not finished, Your Honor. 

THE COURT: I – Yes, you are, because it's not relevant to 

what we're doing here today, Mr. Valdez. Because either 

we're going to take a plea or we're going to set a new trial 

date. And then there will be no pleas taken. The – this is –

I'm not even going to allow the State to make another plea 

offer because we had jurors set to come in, we had your 

expert witness that you'd requested who was scheduled to 

come in, there was a lot of inconvenience, I – because we 

[were] told that you had – wanted to enter a plea, which is fine, 

you have every right in the world to enter a plea, you have 

every right in the world to have a trial, but we're not going to 

do this yo-yo back and forth anymore. 

If you need a couple more minutes to talk to [second 

appointed counsel] if – about entering the plea today, I'll grant 

you that. If you say, "nope, I don't want to enter the plea,"

we're going to set a trial date and there will be a trial on that 

date, I'm not going to accept a plea to anything other than as 

charged under the indictment because I – we – we just . . . 

have to get this case resolved. You want to get it resolved. 

So do I. 

. . . 

[Appellant]: [H]e told me Friday, against my will, he talked me 

into doin' a plea that said you and . . . the DA were on board 

with a five year, then two hours later, he called the jail for me 

to call him and told me this deal. That's where I – where I'm 

upset. 

THE COURT: So, are you telling me you want a trial?

[Appellant]: Yes, Sir. 

[Second appointed counsel]: Can we just take a brief 

moment, Your Honor, so I can speak with him?

THE COURT: You – you may. 

(Emphasis added.) 

{¶ 5} After a brief recess for appellant to speak with his counsel, defense counsel 
Preble CA2023-11-015

- 5 -

indicated appellant wished to enter a guilty plea pursuant to the terms of the negotiated 

plea deal. The court verified with appellant that he wished to enter a guilty plea rather 

than go to trial as follows: 

THE COURT: Is that what you want to do, Mr. Valdez? 

[Appellant]: Yes Sir. . . . 

THE COURT: I don't want . . . to be argumentative – let – let 

me tell you how – what I'm thinking. I am not trying to be mean 

by cutting you off, it's just some things are relevant at a certain 

point, some things are not. This is a significant step for you 

with significant consequences and I want to make sure you're 

doing it with a full understanding and voluntarily with 

understanding there are likely to be reservations. 

So, you're sure you're ready to go forward? 

[Appellant]: Yes, sir.

THE COURT: All right. . . . You've had a chance now to review 

the plea waiver?

[Appellant]: Yes, Sir. 

THE COURT: All right. Do you understand all the terms that 

are in that plea waiver? 

[Appellant]: Yes, Sir. 

THE COURT: Do you have any questions about it, 

whatsoever? 

[Appellant]: No, Sir. 

THE COURT: And, now with additional conversations that 

you've had with your Attorney, are those terms acceptable to 

you? 

[Appellant]: Yes, Sir. 

THE COURT: All right. And you are satisfied with the legal 

services that you've received from [second appointed 

counsel]?

[Appellant]: Yes, Sir. 
Preble CA2023-11-015

- 6 -

THE COURT: Have you had an adequate amount of time to 

meet with him in order to discuss your case? 

[Appellant]: Yes. 

THE COURT: And did he answer any questions that you 

might've had about your case to your satisfaction? 

[Appellant]: Yes, Sir. 

THE COURT: And finally, did he share with you the evidence 

that the State would have presented had there been a trial in 

your case? 

[Appellant]: Yes, Sir. 

{¶ 6} Thereafter, the trial court proceeded with the Crim.R. 11 plea colloquy. 

When asked how he pled to the charge of rape, appellant replied, "Guilty." The trial court 

accepted appellant's guilty plea and found it was knowingly, intelligently, and voluntarily 

made with the advice of counsel. The matter was set for sentencing. 

{¶ 7} On October 30, 2023, a sentencing hearing commenced. However, at that 

time, appellant orally requested a withdrawal of his plea. The trial court suspended the 

sentencing hearing and permitted counsel to file a written motion on behalf of appellant. 

The motion to withdraw the guilty plea was filed on November 1, 2023, and was supported 

by a signed letter from appellant.1 In the motion and attached letter, appellant indicates 

he is not guilty of the rape and gross sexual imposition offenses, that he has "witnesses 

who will support that [he is] not guilty of all charges, and that he "felt duress on the date 

of [his plea . . . to enter the plea." 

{¶ 8} A hearing on appellant's motion to withdraw his guilty plea was held on 

November 2, 2023. Appellant was the only witness to testify at the hearing. He testified 

he wanted to withdraw his plea because, 

1. Appellant titled his signed letter "Affidavit of Simon P. Valdez." However, the document was not signed 

and dated by a notary public, did not bear a notary seal, and did not include a jurat. 
Preble CA2023-11-015

- 7 -

I was not – I was not aware of making a certain deal and then 

it changed. And then when I asked to not sign, I was – I guess 

I was misinformed or misunderstood that we were gonna pick 

a jury at that point and I was dressed like this [in jail attire] and 

I thought if I picked a jury it would be tainted bein' I'm dressed 

like this so I felt coerced to having to sign the paper. 

Appellant further indicated that he had "quite a few witnesses to support my claim that I 

– my innocence." However, on cross-examination, he admitted that he previously told a 

law enforcement officer that he and the victim had engaged in oral sex. He also admitted 

that the terms he pled guilty to on October 9, 2023 were the same terms that were 

presented to him by his counsel via a telephone call on October 6, 2023. 

{¶ 9} The trial court took the matter under advisement and, on November 6, 2023, 

issued a decision denying appellant's motion to withdraw his plea. The court found there 

was "not a reasonable and legitimate basis for allowing the withdrawal of the plea." Two 

days later, on November 8, 2023, appellant was sentenced to seven to ten-and-one-half 

years in prison and was designated a Tier I sex offender. 

{¶ 10} Appellant appealed, raising two assignments of error for review. 

{¶ 11} Assignment of Error No. 1:

{¶ 12} APPELLANT'S PLEA WAS NOT KNOWING, INTELLIGENT, AND 

VOLUNTARY. 

{¶ 13} Appellant argues his plea was not knowing, intelligent, or voluntary because 

the record reflects that he found the terms of the plea unacceptable and that he entered 

the plea under duress. Appellant contends the record demonstrates that he only entered 

the guilty plea because he believed a jury trial was to be held that day and he would be 

required to appear before the jury in jail attire. 

{¶ 14} A guilty plea that is not knowing, intelligent, and voluntary violates the Ohio 

and United States Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 
Preble CA2023-11-015

- 8 -

citing Kercheval v. United States, 274 U.S. 220, 223 (1927). It is the trial court's duty, 

therefore, to ensure that a defendant "has a full understanding of what the plea connotes 

and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244 (1969). 

{¶ 15} To ensure that a defendant's guilty plea is knowingly, intelligently, and 

voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to 

Crim.R. 11(C). State v. Leonicio, 2023-Ohio-2433, ¶ 33 (12th Dist.). Specifically, the "trial 

court must inform the defendant that he is waiving his privilege against compulsory selfincrimination, his right to jury trial, his right to confront his accusers, and his right of 

compulsory process of witnesses." State v. Montgomery, 2016-Ohio-5487, ¶ 41; Crim.R. 

11(C)(2)(c). In addition to these constitutional rights, the trial court must determine that 

the defendant understands the nature of the charge, the maximum penalty involved, and 

the effect of the plea. Id.; Crim.R. 11(C)(2)(a) and (b). "A plea may be involuntary if 'the 

accused does not understand the nature of the constitutional protections he is waiving . . 

. or because he has such an incomplete understanding of the charge that his plea cannot 

stand as an intelligent admission of guilt.'" Montgomery at ¶ 42, quoting Henderson v. 

Morgan, 426 U.S. 637, 645, fn. 13 (1976).

{¶ 16} Appellant has not specifically identified any problem in the trial court's 

Crim.R. 11 colloquy and the record reflects that the trial court complied with the 

requirements of Crim.R. 11(C) in advising him of the constitutional rights he was waiving 

and in covering the other nonconstitutional aspects of his guilty plea.

{¶ 17} Additionally, contrary to appellant's assertions, the record of the plea 

hearing does not indicate that appellant entered his plea under duress or that there was 

any basis for him to believe that a jury trial would begin immediately—while he was 

dressed in jail attire—if he did not enter a guilty plea on October 9, 2023. Rather, the 

transcript demonstrates that appellant was advised by the trial court that if he elected not 
Preble CA2023-11-015

- 9 -

to enter a plea, "we're going to set a new trial date" and "we're going to set a trial date 

and there will be a trial on that date." The trial court did not state that there would be a 

trial that day, but rather clearly indicated a future date would be set. 

{¶ 18} After indicating that a trial date would be set if appellant did not wish to enter 

a plea, the trial court provided appellant with the opportunity to consult with his counsel. 

Appellant therefore had the opportunity to clear up any confusion he may have had about 

when a trial would commence if he elected not to enter a guilty plea. Following his 

discussion with counsel, appellant indicated to the trial court that he wished to enter a 

guilty plea to the charge of rape and that the terms of the plea were acceptable to him. 

{¶ 19} As nothing in the record indicates appellant failed to understand the charges 

he faced, the consequences of his plea, or the rights he was waiving by pleading guilty 

and nothing in the record indicated appellant was acting under duress at the time he 

entered his plea, we find that appellant's plea was knowingly, intelligently, and voluntarily 

made. Appellant's first assignment of error is overruled. 

{¶ 20} Assignment of Error No. 2: 

{¶ 21} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION 

TO WITHDRAW HIS PLEA. 

{¶ 22} In his second assignment of error, appellant contends the trial court abused 

its discretion in denying his presentence motion to withdraw his guilty plea. He contends 

his motion should have been granted where the circumstances demonstrated he felt 

coerced into entering the plea, he had evidence that he was not guilty of the offenses, 

and he was prepared to call witnesses who could testify on his behalf. 

{¶ 23} Pursuant to Crim.R. 32.1, a defendant may file a presentence motion to 

withdraw a guilty plea. State v. Schwartz, 2019-Ohio-4912, ¶ 12 (12th Dist.). "[A] 

defendant's presentence motion to withdraw a guilty plea should be freely and liberally 
Preble CA2023-11-015

- 10 -

granted." (Emphasis in original.) State v. Barnes, 2022-Ohio-4486, ¶ 21, citing State v. 

Xie, 62 Ohio St.3d 521, 527 (1992). However, although freely and liberally granted, that 

does not mean a defendant possess an absolute right to withdraw a guilty plea prior to 

sentencing. Id. at ¶ 22; State v. Manis, 2012-Ohio-3753, ¶ 24 (12th Dist.). "Rather, the 

trial court must conduct a hearing to determine whether there is a reasonable and 

legitimate basis for the withdrawal of the plea." State v. Newton, 2015-Ohio-2319, ¶ 10 

(12th Dist.), citing State v. Witherspoon, 2010-Ohio-4569, ¶ 8 (12th Dist.). 

{¶ 24} "In determining whether to grant a presentence motion to withdraw a guilty 

plea, the trial court should consider the circumstances surrounding the defendant's plea." 

State v. Harris, 2019-Ohio-1700, ¶ 11 (12th Dist.). Factors to be considered include, but 

are not limited to, (1) whether the defendant was represented by highly competent 

counsel; (2) whether the defendant was afforded a complete Crim.R. 11 hearing before 

entering the plea; (3) whether the trial court conducted a full and impartial hearing on the 

defendant's motion to withdraw the plea; (4) whether the trial court gave full and fair 

consideration to the motion; (5) whether the motion was made within a reasonable time; 

(6) whether the motion set out specific reasons for the withdrawal; (7) whether the 

defendant understood the nature of the charges and the possible penalties; (8) whether 

the defendant was possibly not guilty of the charges or had a complete defense to the 

charges; and (9) whether the state would have been prejudiced by the withdrawal. State 

v. Owens, 2022-Ohio-160, ¶ 30 (12th Dist.), citing State v. Snider, 2013-Ohio-4641, ¶ 9 

(12th Dist.). 

{¶ 25} "No one factor is conclusive in the determination of whether a plea should 

be allowed to be withdrawn." State v. Rivera, 2014-Ohio-3378, ¶ 17 (12th Dist.), citing 

State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist. 1995). Rather, "[t]he decision to grant 

or deny a presentence motion to withdraw a guilty plea rests within the sound discretion 
Preble CA2023-11-015

- 11 -

of the trial court." State v. Medina, 2022-Ohio-1799, ¶ 13 (12th Dist.). This court will not 

reverse a trial court's decision denying such a motion absent an abuse of that discretion. 

State v. Sales, 2022-Ohio-4326, ¶ 26. "An abuse of discretion connotes more than an 

error of law or judgment; it implies that the trial court's attitude was arbitrary, 

unreasonable, or unconscionable." State v. Robinson, 2013-Ohio-5672, ¶ 14 (12th Dist.); 

State v. Hancock, 2006-Ohio-160, ¶ 130. 

{¶ 26} The record reflects that in ruling on appellant's motion to withdraw his guilty 

plea, the trial court took into consideration each of the nine factors identified above before 

rendering its decision. Though the court found that the state would not be prejudiced if it 

were to grant the motion to withdraw, the remaining factors did not support granting the 

motion. The court concluded that "there is not a reasonable and legitimate basis for 

allowing the withdrawal of [appellant's] plea." Appellant disagrees with the trial court's 

determination, arguing he had a legitimate basis for the withdrawal of his guilty plea as 

he was innocent of the crimes charged, he had witnesses that would testify on his behalf, 

and he only entered the plea because he "felt coerced" by his belief that he would be tried 

by a jury while dressed in jail attire on the day of the plea proceedings. 

{¶ 27} As discussed in our resolution of appellant's first assignment of error, with 

respect to appellant's belief that he would be tried by a jury the same day his plea was 

set to occur, there is no evidence in the record to support his belief. As the trial court 

noted, appellant 

was expressly told that if he did not want to enter his plea, 

"we're going to set a trial date and there will be a trial on that 

date." . . . Also, it was obvious that no jurors were present 

and, had he raised the issue of having to proceed immediately 

to trial with the Court or his counsel, he would have been 

immediately disabused of that notion. There was no 

confusion as to whether a trial would have commenced on 

October 9 had [appellant] not gone forward with his plea. 
Preble CA2023-11-015

- 12 -

{¶ 28} With respect to appellant's claim of innocence, the trial court noted that this 

was nothing more than a "bald assertion" that appellant was not guilty. Appellant did not 

identify any specific evidence or identify any witnesses that would support his claimed 

innocence. Further, appellant's claim of innocence was contradicted by his 

acknowledgement that in an interview with investigating officers, he admitted to engaging 

in sexual conduct with the victim. Appellant later made the same admission during his 

presentence investigation interview. Additionally, a psychologist's report from an 

evaluation of the victim indicated that the victim was unable to consent to sexual conduct 

due to her mental condition. 

{¶ 29} The record reflects that appellant was provided with a full Crim.R. 11 plea 

colloquy prior to entering his plea, and he understood the nature of the charges and the 

possible penalties he faced. He was represented by highly competent counsel and he 

had the opportunity to discuss any questions or concerns he had about the plea with 

counsel. Appellant indicated he was satisfied with counsel's services, that counsel 

answered any questions he had to his satisfaction, that counsel shared the evidence the 

state would have presented had there been a trial, and that he had an adequate amount 

of time to meet with counsel. The trial court noted that those portions of second appointed 

counsel's work that were visible to the court were "skillful and vigorous." 

{¶ 30} The trial court further found that appellant had not filed his motion to 

withdraw in a reasonable time. As the court noted, the reasons appellant identified for 

wanting to withdraw his plea—his belief that he would be tried by a jury on the same day 

he was to enter the plea while dressed in prison attire and his claim of innocence—all 

existed on the day he entered his plea. Nonetheless, appellant waited until October 30, 

2021, 21 days after he entered his guilty plea, to orally request that he be permitted to 

withdraw his plea. As the trial court noted, "there was no justification offered for the timing 
Preble CA2023-11-015

- 13 -

of the request." 

{¶ 31} Under the circumstances presented in this case, we find that the trial court 

did not abuse its discretion in denying appellant's motion to withdraw his guilty plea. The 

record supports the trial court's determination that there is not a reasonable and legitimate 

basis for allowing the withdrawal of appellant's guilty plea. Appellant's second assignment 

of error is overruled. 

{¶ 32} Judgment affirmed. 

S. POWELL, P.J., and PIPER, J., concur.