[Cite as State v. Wolfert, 2026-Ohio-2850.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250448
TRIAL NO. B-2403966
Plaintiff-Appellee, :
vs. :
STEVEN WOLFERT, : JUDGMENT ENTRY
Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs.
For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 50% to appellant and 50% to appellee.
The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 7/24/2026 per order of the court.
By:_______________________
Administrative Judge
[Cite as State v. Wolfert, 2026-Ohio-2850.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250448
TRIAL NO. B-2403966
Plaintiff-Appellee, :
vs. :
STEVEN WOLFERT, : OPINION
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: July 24, 2026
Connie Pillich, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Kollin Firm, LLC, and Thomas M. Kollin, for Defendant-Appellant.
[Cite as State v. Wolfert, 2026-Ohio-2850.]
BOCK, Judge.
{¶1} Defendant-appellant Steven Wolfert appeals his rape, strangulation,
and domestic-violence convictions. In four assignments of error, Wolfert argues that
trial counsel conceded guilt during his opening statement in violation of his Sixth
Amendment rights, that his convictions for rape are supported by insufficient evidence
and are contrary to the weight of the evidence, that the trial court erred when it
imposed consecutive sentences, and that the trial court abused its discretion when it
denied his request for a continuance.
{¶2} We overrule Wolfert’s first, second, and fourth assignments of error.
First, trial counsel’s concession of guilt violates a defendant’s Sixth Amendment rights
only when the record shows that the concession was made without the defendant’s
consent. Here, the record does not suggest that counsel unilaterally conceded
Wolfert’s guilt. Next, Wolfert’s rape convictions were supported by sufficient evidence
and the weight of the evidence where the victim’s testimony, corroborated by Wolfert’s
threat to kill the victim unless she engaged in sexual conduct, proved that Wolfert used
the threat of force to purposely compel the victim to submit. And the trial court
reasonably denied Wolfert’s request for a seventh continuance because his request was
indefinite as it did not identify a date when his witness would be available.
{¶3} But we sustain his third assignment of error and hold that Wolfert’s
sentence is contrary to R.C. 2929.14(C)(4) because the trial court failed to make the
necessary statutory findings at Wolfert’s sentencing hearing when it imposed
consecutive sentences. We reverse the trial court’s imposition of consecutive sentences
and remand the cause to the trial court to determine whether consecutive sentences
are appropriate and justified under R.C. 2929.14(C)(4).
OHIO FIRST DISTRICT COURT OF APPEALS
I. Factual and Procedural History
{¶4} The State charged Wolfert for two counts of rape in violation of R.C.
2907.02(A)(2), strangulation in violation of R.C. 2903.18(B)(2), and domestic
violence in violation of R.C. 2919.25(A).
{¶5} Minutes before his trial was scheduled to begin, Wolfert moved for a
continuance because his mother was unavailable to testify in his defense. The trial
court denied Wolfert’s motion.
A. Wolfert’s trial
{¶6} During its opening statement, the State informed the jury that the
evidence would prove that Wolfert struck, strangled, and then forced his then-wife
A.W. to engage in sexual acts. In response, Wolfert’s trial counsel remarked to the jury
during his opening statement:
I’m going to tell you something that . . . I [don’t] think I have ever told a
jury before, which is at the end of this trial, I expect you to find Steven
guilty of some of these charges. I can’t think of a time that I have ever
told a jury that. In fact, at the end of this case, I expect that you are going
to convict Steven of domestic violence. I expect that you’re going to find
Steven is guilty of strangulation.
Small point on that. There’s a few types of strangulation. And you
will be instructed on the different types of strangulation in Ohio,
different types of strangulation and different charges involving
strangulation. What Steven is currently charged with is strangulation
where he is accused of causing or attempting to cause serious physical
harm to [A.W.]. Serious physical harm is a defined concept. It is going
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OHIO FIRST DISTRICT COURT OF APPEALS
to be defined for you. It’s going to be black and white, what does serious
physical harm mean, X, Y, Z and it will be defined for you.
What I expect you to find Steven guilty of again in this trial is a
different type of strangulation . . . that he choked [A.W.], his wife, and
that he caused her physical harm. He caused her – attempted to cause
her physical harm. One word different, physical harm versus serious
physical harm. They’re both going to be defined for you. You’re going to
see that the evidence does not support the current strangulation that
Steven is charged with. And you’re to find that it supports the other kind
of strangulation. And the reason you’re going to find that is because the
evidence is clear today.
1. The State’s case
{¶7} A.W. testified that she and Wolfert had two children during their
marriage. She filed for divorce in January 2024 because of Wolfert’s infidelity,
addiction issues, and “controlling and toxic behavior.” The two separated. Both
Wolfert and A.W. enrolled in addiction treatment. They “talked about getting back
together a few times” and had “a sexual relationship” during their separation.
{¶8} By August 2024, A.W. had moved the children into an apartment owned
by Wolfert’s mother, and Wolfert was expecting a child with his new girlfriend. A.W.
suspected that Wolfert was returning to his old ways and seemed “a little more
aggressive.” Wolfert had threatened to disseminate sensitive and damaging
information about A.W. to friends and family if A.W. did not perform sexual acts or
allow Wolfert to control her. A.W. later told Wolfert that she was “done” with him.
{¶9} After a night of drinking, Wolfert used a discussion about their children
as a pretext to visit A.W. in her apartment while their children were asleep. With one
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OHIO FIRST DISTRICT COURT OF APPEALS
foot in the door, Wolfert “ripped” A.W.’s cell phone out of her hands and began filming
with his own cell phone. A.W. testified that Wolfert filmed 22 videos of Wolfert
searching A.W.’s phone for conversations with other men, “assaulting” and
“strangling” A.W., fellatio, and then vaginal intercourse. The State entered the footage
into the record.
{¶10} A.W. explained that Wolfert had supported A.W. financially throughout
the divorce proceedings, and at one point gave her $800 conditioned on Wolfert’s
ability to inspect her phone. Apparently, Wolfert had inspected A.W.’s phone in the
past but became “obsessive” about it after their separation. In the footage of Wolfert
inspecting A.W.’s phone, Wolfert remarked that he “caught” A.W. talking to other
men. She testified that Wolfert disapproved of her “male friends” that she had slept
“with for money.”
a. Wolfert berated, choked, attacked, and threatened A.W.
{¶11} In one recording,1 Wolfert can be heard bringing A.W. to the ground and
threatening to “choke her.” A.W. recalled that Wolfert was sitting on the floor with
A.W. in a headlock “scrawled behind him” while she struggled to breathe. A.W.
testified that Wolfert had pinned her to the floor using his bodyweight and she “knew
better than to fight him at this time.” As A.W. gasped for air, Wolfert interrogated her
over the messages in her phone and demanded that A.W. admit to “everything [she’s]
fucking done.” A.W. testified that “[Wolfert] would strangle me, ask me a question,
and then lift them off.” Eventually, Wolfert “started hitting” A.W.
{¶12} In other footage, Wolfert can be heard accusing A.W. of engaging in sex
work and referencing the $800 that he gave her as she cried and begged him to stop.
1 Wolfert’s camera was pointed at the ground, so the recording is limited to audio.
6
OHIO FIRST DISTRICT COURT OF APPEALS
Wolfert told her to “be quiet” and twice threatened to “murder” her. Minutes later, he
threatened both her murder and his suicide when their divorce became final. And
other footage includes the sound of Wolfert striking A.W. and her crying in response.
Wolfert paused his attack to tell A.W. that he would murder her because he did not
want his children to be “raised by a whore.” In another recording, Wolfert threatened
to “beat the fuck out of [A.W.’s] face until [it was] fucking bloody” if she refused to
show him everything in her phone. A.W. testified that the strangulation caused her to
feel lightheaded and “pass[] out” at one point.
{¶13} Wolfert ended his assault when one of their children woke and started
to cry. A.W. attended to and soothed their child for roughly 25 minutes. Afterwards,
Wolfert told A.W. that “he was going to be that guy on the news that killed his entire
family and then himself,” and A.W. would be “dead by sunrise.”
b. Wolfert demanded oral and vaginal sex
{¶14} A.W. testified that Wolfert went to the bathroom and then sat on the
couch “with his pants off” and “motion[ed] to . . . his penis.” Fearing his threats to be
true, A.W. “figured . . . having sex with him might increase [her] chance[]” of survival.
Wolfert recorded A.W. as she performed fellatio.2 A.W. testified that, at one point, she
tried to stop and talk to Wolfert but he instructed her to “keep going.” At another point,
Wolfert asked about “Scott,” grabbed at her neck, and then “swung at” her. A.W.
described feeling that she had no control over the situation and no way to escape with
her daughters.
{¶15} A.W. testified that Wolfert recorded two instances of vaginal intercourse
with A.W. that night. A.W. bristled at the notion that the conversation during the
2 With A.W. on the stand, the State tried to play all 15 recordings of the sexual acts before the trial
court asked whether it was “crucial to brutalize the jury by watching every second of it?”
7
OHIO FIRST DISTRICT COURT OF APPEALS
intercourse was “banter” and “casual,” and clarified that she “was saying and doing
whatever [she] could to stay alive” and to avoid antagonizing Wolfert after “he
threatened the lives of [her] children.”
c. The investigation
{¶16} After Wolfert left A.W.’s apartment the next morning to buy “drugs,”
A.W. contacted the police. A.W. went to the hospital for a medical and sexual-assault
examination (“SANE”). The bodycam footage and A.W.’s hospital records were
entered into the record. The treating physician observed “[n]umerous, moderate
abrasions” on A.W.’s neck and “left-sided facial swelling and bruising.” The SANE
nurse described her examination of A.W., and her report was entered into the record.
{¶17} A sheriff’s deputy testified that, during an interview, Wolfert showed
officers his recordings. As a result of those recordings, officers secured a search
warrant for Wolfert’s phone.
2. Wolfert’s defense
{¶18} Wolfert testified that his relationship with A.W. in 2024 was “on-again,
off-again” and agreed that his behavior in the recordings was “heinous.” But Wolfert
claimed that his arguments with A.W. typically ended with “physical intimacy,” the
sexual dynamic between Wolfert and A.W. evolved throughout the divorce, and their
new dynamic was reflected in the recordings played at trial.
{¶19} Wolfert recalled drinking “[h]eavily” and using cocaine on the night in
question. He felt his demeanor changing after seeing “signs that [A.W.] is not holding
upstanding morals” and “being with other men for money.” Wolfert agreed that he
pinned A.W. to the ground after remarking that he “caught” A.W. messaging “Scott,”
but insisted that he was not “on top of [A.W.].” Wolfert agreed that A.W.’s responses
to his questions made him “[a]bsolute[ly] furious.”
8
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Wolfert agreed that he punched, choked, and threatened to murder
A.W. but disagreed that she lost consciousness. He justified his actions by citing A.W.’s
“verbal assault” on him and his dissatisfaction with A.W.’s answers to his questions.
He admitted that A.W. was under duress that night, that he would have strangled her
more if she refused to answer his questions, and that he threatened to murder A.W. to
“intimidate” her. Later, Wolfert was “willing to admit the domestic violence and the
strangulations, things we know happened.” And when Wolfert was asked how long he
punched and strangled A.W., Wolfert responded the question was irrelevant and
admitted, “I’m guilty.”
{¶21} Wolfert explained that his recordings depict an hour of his and A.W.’s
entire night. According to Wolfert, his daughter awoke around 2:30 a.m. After she
returned to sleep, he and A.W. calmed down, shared a meal, and had a lengthy
conversation in which A.W. apologized to Wolfert. Wolfert recalled that sometime
around 3:30 a.m., he remarked to A.W. that his $800 entitled him to the “[f]ull
package” of “sexual conduct.” He also recalled that A.W. referenced one of Wolfert’s
threats before she performed fellatio. Wolfert responded to A.W. that he “might” carry
out that threat. He testified that he was “let[t]ing her know that if she’s not truly sorry
about her prostitution, that an event like that, as a final straw, could possibly happen
again.” But he testified that he did not intend to coerce A.W. into performing fellatio
and insisted that the sexual contact was consensual.
B. Verdict and sentencing
{¶22} The jury found Wolfert guilty of both counts of rape, strangulation, and
domestic violence. The trial court imposed an aggregate sentence of 15 to 18 years in
prison: a six-to-nine-year sentence on one rape count, six years on the second rape
count, and three years on the strangulation count, all to be served consecutively. It also
9
OHIO FIRST DISTRICT COURT OF APPEALS
imposed an 180-day sentence for domestic violence, to be served concurrently with
the consecutive sentences.
II. Analysis
{¶23} Wolfert challenges his convictions and sentences in four assignments
of error. First, Wolfert argues that trial counsel’s concessions during his opening
statement violated Wolfert’s Sixth Amendment rights. Second, he argues that his rape
convictions are contrary to the weight and sufficiency of the evidence, because, in his
view, the State did not prove that he compelled A.W. to submit to sexual conduct by
force. Third, he maintains that his consecutive sentences are contrary to law. Finally,
he insists that the trial court abused its discretion when it denied his motion for a
continuance.
A. First assignment of error: Wolfert’s counsel was not ineffective
{¶24} Wolfert argues that trial counsel’s concession of guilt during his
opening statement amounted to a de facto guilty plea to the strangulation and
domestic-violence charges and violated Wolfert’s Sixth Amendment rights.
1. Conceding guilt under the Sixth Amendment
{¶25} The Sixth Amendment to the United States Constitution guarantees a
person accused of a criminal offense “the right . . . to have the Assistance of Counsel
for his defence.” Of course, “‘the right to counsel is the right to the effective assistance
of counsel.’” Strickland v. Washington, 466 U.S. 668, 686 (1984), quoting McMann
v. Richardson, 397 U.S. 759, 771, fn. 14 (1970). Counsel deprives a defendant of his
right to the effective assistance of counsel “by failing to render ‘adequate legal
assistance.’” Id., quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
{¶26} Wolfert initially argues that trial counsel’s concession of Wolfert’s guilt
during opening statements violated his right to the effective assistance of counsel
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OHIO FIRST DISTRICT COURT OF APPEALS
under the Sixth Amendment.3 Under Strickland, a defendant raising an ineffectiveassistance-of-counsel claim “must show that counsel’s performance was deficient” and
“the deficient performance prejudiced the defense.” Strickland at 687.
{¶27} To prove that counsel’s performance was deficient, Wolfert must
demonstrate that counsel’s performance “fell below an objective standard of
reasonableness.” Id. at 688. That analysis turns on whether trial counsel’s assistance
was “outside the wide range of professionally competent assistance,” considering both
the circumstances of the case and all “prevailing professional norms.” Id. at 690. We
presume “that counsel’s performance falls within the wide range of reasonable
professional assistance.” Id. at 689. So, we refrain from second guessing a legitimate
trial strategy. State v. Reinhardt, 2014-Ohio-4071, ¶ 16 (1st Dist.). But we may not
rehabilitate counsel’s performance with “‘post hoc rationalization’ for counsel’s
decisionmaking that contradicts the available evidence of counsel’s actions.”
Harrington v. Richter, 562 U.S. 86, 109 (2011), quoting Wiggins v. Smith, 539 U.S.
510, 526-527 (2003).
{¶28} Wolfert argues that counsel’s performance was deficient because
conceding guilt to “multiple felonies” during his opening statement contradicted
3 In his appellate brief, Wolfert cites Strickland and argues that the concessions “are deficient for
several reasons,” and “[t]he prejudice from counsel’s concessions extends beyond the specific charges conceded,” and that “[t]here is a reasonable probability that if defense counsel had not made these extraordinary concessions in opening statement, the jury would have acquitted Mr. Wolfert of at least some charges.” Appellant’s Brief at 11, 13, 16. But he argues in his reply brief that the State’s responsive argument “ignores the Supreme Court’s explicit holding in McCoy” and that “McCoy, not Strickland, provides the controlling framework.” Appellant’s Reply Brief at 2-3. While reply briefs offer an opportunity to respond to the appellee’s argument, Wolfert’s reply brief risks abandoning his claim on appeal. See In re G.J.A., 2018-Ohio-2838, ¶ 18, fn. 5 (8th Dist.) (“Mother abandons this assigned error in her reply brief.”); see also State v. Shedwick, 2012-Ohio-2270, ¶ 49 (10th Dist.) (“In his reply brief, appellant concedes that Pelfrey does not apply to the aggravated robbery and aggravated burglary charges against him, thus abandoning the initial argument in support of his fifth assignment of error.”); City of Columbus v. Reiner, 2018-Ohio-975, ¶ 22 (10th Dist.) (“in appellant’s reply brief he apparently abandons this claim”); State v. Murnahan, 117 Ohio App.3d 71 (2d Dist. 1996) (“In his reply brief, Murnahan abandoned this argument.”).
11
OHIO FIRST DISTRICT COURT OF APPEALS
Wolfert’s not-guilty pleas, invited the jury to accept the State’s framing of the case, and
was not a tactical or strategic decision.
{¶29} But a closer reading of trial counsel’s opening statement reveals that
trial counsel did not concede guilt to strangulation as charged in Count 3. In the
indictment, the State alleged that Wolfert committed strangulation in violation of R.C.
2903.18(B)(2), which requires proof that Wolfert “[c]reate[d] a substantial risk of
serious physical harm [to A.W.] by means of strangulation or suffocation.”
Strangulation that causes a substantial risk of serious physical harm is a third-degree
felony. See R.C. 2903.18(C)(2). By contrast, strangulation is a fourth-degree felony if
the strangulation of a family member results in “physical harm.” R.C. 2903.18(B)(3)
and (C)(3). During his opening statement, counsel for Wolfert told the jury, “[T]he
evidence does not support the current strangulation that Steven is charged with” and
instead proved that Wolfert caused or “attempted to cause [A.W.] physical harm.”
Considering the recordings and medical evidence describing injuries to A.W.’s neck,
counsel’s suggestion that Wolfert’s actions constituted a lesser-included offense falls
within the range of legitimate trial strategy.
{¶30} Still, trial counsel conceded guilt to domestic violence as charged. Under
the Sixth Amendment both “[t]rial management” and “strategic choices about how
best to achieve a client’s objectives” fall within counsel’s “province.” (Emphasis
added.) McCoy v. Louisiana, 584 U.S. 414, 422 (2018). But “defense counsel has
control over trial-management decisions.” State v. Ward, 2019-Ohio-4148, ¶ 23 (1st
Dist.). In general, counsel’s opening statement is an aspect of trial management that
“falls within the realm of trial tactics.” See State v. Parker, 2026-Ohio-343, ¶ 11 (5th
Dist.). Opening statements are defense counsel’s opportunity to reframe the case and
offer “the jury a roadmap for evidence sought to be presented at the trial.” State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Godfrey, 2025-Ohio-1575, ¶ 21 (1st Dist.). Indeed, Wolfert recognizes that trial
“‘counsel is accorded latitude and allowed “fair comment” on the facts to be presented
at trial.’” Id., quoting State v. Diar, 2008-Ohio-6266, ¶ 145, quoting State v. Leonard,
2004-Ohio-6235, ¶ 157. So ordinarily, defense counsel’s opening statement “does not
signify ineffective assistance of counsel.” Parker at ¶ 11.
{¶31} Wolfert initially cited McCoy in support of his argument that counsel’s
performance was deficient. In his reply brief, he insists that McCoy requires a
structural-error analysis of Wolfert’s trial counsel’s concessions during opening
statements. And he contends that trial counsel’s concession in this case must be
reviewed for structural error regardless of whether the record includes defendant’s
objection to the concession. Wolfert is correct that, in contrast to ineffective-assistance
claims under Strickland, structural errors, “when present . . . [are] not subject to
harmless-error review.” McCoy at 427. But contrary to Wolfert’s arguments, McCoy
does not govern every concession of guilt by trial counsel.
2. Conceding guilt is not always structural error
{¶32} Before McCoy, the United States Supreme Court addressed the
standard for reviewing defense counsel’s concession of guilt in the guilt phase of a
capital case in Florida v. Nixon, 543 U.S. 175 (2004). In Nixon, trial counsel conceded
guilt after proposing the concession as a strategic decision and explaining its benefits
on three occasions to the defendant, who “was generally unresponsive” and “never
verbally approved or protested.” Id. at 181. The Nixon Court reasoned that, consistent
with the right to the effective assistance of counsel under the Sixth Amendment,
defense “counsel undoubtedly has a duty to discuss potential strategies with the
defendant.” Id. at 178. The Court reasoned that conceding guilt after consulting with a
13
OHIO FIRST DISTRICT COURT OF APPEALS
nonresponsive defendant “must be judged in accord with the inquiry generally
applicable to ineffective-assistance-of-counsel claims” under Strickland. Id.
{¶33} Then in McCoy, the Court considered whether trial counsel’s concession
of guilt over her client’s objection in a capital case violates a defendant’s “Sixth
Amendment-secured autonomy.” McCoy, 584 U.S. at 427. The McCoy Court clarified
that Strickland’s test for ineffective-assistance claims applies when “counsel’s
competence, is in issue.” Id. at 426. In those cases, a defendant must show prejudice.
Id. In contrast, McCoy involved a different Sixth Amendment right—a defendant’s
right to autonomy “to decide on the objective of his defense: to admit guilt in the hope
of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the
State to prove his guilt beyond a reasonable doubt.” Id. at 417-418.
{¶34} Under the Sixth Amendment, a defendant represented by counsel still
retains his “[a]utonomy to decide that the objective of the defense is to assert
innocence.” Id. at 422. Indeed, assistance of counsel does not require “surrender[ing]
control entirely to counsel.” Id. The decision to maintain one’s innocence is one of the
fundamental decisions reserved to the defendant. Id., citing Jones v. Barnes, 463 U.S.
745, 751 (1983). Counsel’s authority over trial-management issues does not diminish
a defendant’s “right to insist that counsel refrain from admitting guilt, even when
counsel’s experienced-based view is that confessing guilt offers the defendant the best
chance to avoid the death penalty.” Id. at 417. Simply put, criminal defense under the
Sixth Amendment must be a “collaborative enterprise.” Villarreal v. Texas, 607 U.S.
465, 477 (2026); see Faretta v. California, 422 U.S. 806, 820 (1975) (“an assistant,
however expert, is still an assistant.”); see also Gannett Co. v. DePasquale, 443 U.S.
368, 382, fn. 10 (1979) (“the accused, and not a lawyer, is master of his own defense.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
Afterall, “[t]he defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction.” Faretta at 834.
{¶35} Wolfert contends that McCoy does not require proof of an objection by
a defendant to trigger a structural-error analysis. But a successful McCoy claim
requires proof in the record that trial counsel encroached on the client’s autonomy.
See Ward, 2019-Ohio-4148, at ¶ 24 (1st Dist.); see also State v. Roberts, 2025-Ohio5583, ¶ 11 (5th Dist.); State v. Froman, 2020-Ohio-4523, ¶ 142; United States v.
Hashimi, 110 F.4th 621, 629 (4th Cir. 2024); Demora v. Rivello, 2024 U.S. Dist. LEXIS
245805, *14-15 (E.D.Pa. Aug. 29, 2024); People v. Bernal, 42 Cal.App.5th 1160, 1166
(2019); Ex parte Barbee, 616 S.W.3d 836, 845 (Tex.Crim.App. 2021); Epperson v.
Commonwealth, 645 S.W.3d 405, 408 (Ky. 2021); Grant v. Commr. of Correction,
345 Conn. 683, 697 (2022).
{¶36} In McCoy, “the trial court permitted counsel . . . to tell the jury the
defendant ‘committed three murders. . . . [H]e’s guilty.’” McCoy, 584 U.S. at 417. The
Court held that “the violation of McCoy’s protected autonomy right was complete
when the court allowed counsel to usurp control of an issue within McCoy’s sole
prerogative.” Id. at 426-427. The McCoy Court emphasized that, “in contrast to Nixon,
[McCoy] vociferously insisted that he did not engage in the charged acts and
adamantly objected to any admission of guilt.” Id. at 417. The concession in McCoy
also was distinguishable from that in Nixon because “Nixon’s attorney did not negate
Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never
asserted any such objective.” Id. at 424. The Court unequivocally “agree[d] with the
majority of state courts of last resort that counsel may not admit her client’s guilt of a
charged crime over the client’s intransigent objection to that admission.” Id. at 426.
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OHIO FIRST DISTRICT COURT OF APPEALS
So, a McCoy claim requires proof in the record that trial counsel conceded guilt over
the defendant’s expressed desire to maintain innocence.
{¶37} Here, the record does not suggest that trial counsel defied Wolfert’s
decision to maintain his innocence to the domestic-violence and strangulation
charges. Indeed, counsel’s opening statements were consistent with Wolfert’s
testimony where he admitted to striking and strangling A.W., but denied causing
serious physical harm to A.W. When the State cross-examined Wolfert, he told the jury
that he was “willing to admit the domestic violence and the strangulation, things we
know that happened.”
{¶38} Moreover, there is nothing in the record to suggest that trial counsel
failed to consult with Wolfert. Rather, Wolfert’s testimony demonstrates that Wolfert
and his trial counsel were aligned on the strategic choice to concede guilt to the lowest
charges in hopes of obtaining an acquittal on the more serious felony charges.
Generally, when a defense attorney defers to the defendant’s wishes, counsel’s
assistance is not ineffective. State v. Groves, 2022-Ohio-443, ¶ 71 (4th Dist.).
{¶39} We have described the prospect of raising certain ineffective-assistanceof-counsel claims in a direct appeal as “incredibly difficult, if not impossible.” State v.
Lemaine, 2026-Ohio-1741, ¶ 44 (1st Dist.), quoting State v. Collins, 2024-Ohio-5112,
¶ 71 (1st Dist.). This is because we may not infer deficient assistance by trial counsel
from a silent record. See State v. Sawyer, 2025-Ohio-5834, ¶ 41 (1st Dist.), citing State
v. Were, 2008-Ohio-2762, ¶ 244. And on direct appeal, “our review is limited to the
trial court record.” Id. It is possible Wolfert has evidence that trial counsel ignored
Wolfert’s decision to maintain his innocence at trial to every charge or failed to consult
with Wolfert before conceding his guilt. If so, his claims are “better suited for a
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OHIO FIRST DISTRICT COURT OF APPEALS
postconviction petition, where he can introduce evidence” demonstrating trial
counsel’s encroachment on Wolfert’s autonomy or failure to consult with Wolfert. Id.
{¶40} Wolfert has failed to demonstrate that trial counsel’s performance fell
below an objective standard of reasonable performance under Strickland and Nixon,
or that his trial counsel’s concession usurped his Sixth Amendment-secured autonomy
under McCoy. Therefore, we overrule Wolfert’s first assignment of error.
B. Second assignment of error: the sufficiency and weight of the
evidence support Wolfert’s convictions
{¶41} Wolfert claims that the State’s evidence did not prove that he used force
to purposely compel A.W. to engage in sexual conduct.
1. The State’s evidence sufficed to prove that Wolfert used the threat of force to
compel A.W.’s submission to sexual conduct
{¶42} In a sufficiency-of-the-evidence review, we view the evidence in the
State’s favor and ask whether “‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” State v. Johnson, 2008-Ohio-705,
¶ 15 (1st Dist.), quoting State v. Waddy, 63 Ohio St.3d 424, 430 (1992).
{¶43} Wolfert was convicted of rape in violation of R.C. 2907.02(A)(2), which
criminalizes “sexual conduct with another when the offender purposely compels the
victim to submit by force or threat of force.” Under R.C. 2901.01(A), “force” means
“any violence, compulsion, or constraint physically exerted by any means upon or
against a person or thing.” So, the State must prove that the defendant wielded
“violence, compulsion, or constraint against the victim through physical means or []
create[d] the belief that physical force will be used if the victim does not submit.” In
re J.A., 2023-Ohio-4388, ¶ 30 (1st Dist.), citing R.C. 2901.01(A)(1).
{¶44} A rape conviction under R.C. 2907.02(A)(2) requires proof that a
defendant’s use or threat of force caused the victim to submit to sexual conduct. State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Heiney, 2018-Ohio-3408, ¶ 102 (6th Dist.). And the evidence must prove that the
defendant deployed force or the threat of force with the purpose of causing the victim’s
submission. Purpose, as it relates to criminal offenses, refers to a “specific intent” to
“cause a certain result.” R.C. 2901.22(A). Absent an admission, a defendant’s mental
state must “‘be determined by the nature of the act when viewed in conjunction with
the surrounding facts and circumstances.’” State v. Hartman, 2016-Ohio-2883, ¶ 27
(2d Dist.), quoting State v. Mundy, 99 Ohio App.3d 275, 288 (2d Dist. 1994).
{¶45} Wolfert maintains that a reasonable trier of fact could not find that he
used force to compel A.W. to submit to sexual conduct. In support, he cites the
interruptions and breaks between his physical force and sexual acts, the lack of explicit
threats of force, and his lack of physical control over A.W. during the sexual conduct.
{¶46} A “threat” is “‘an expression of intention to inflict evil, injury, or
damage.’” State v. Vega-Medina, 2024-Ohio-3409, ¶ 24 (8th Dist.), quoting MerriamWebster Online, https://www.merriam-webster.com/ dictionary/threat (accessed
June 24, 2024). Relevant here, a threat can consist of “‘a range of statements or
conduct intended to impart a feeling of apprehension in the victim . . . of bodily harm.’”
Id., quoting State v. Cress, 2006-Ohio-6501, ¶ 39. For rape offenses, “threats of force
may be implied by the circumstances” because “the rape statute does not require
explicit threats of force.” Id., citing State v. Rupp, 2007-Ohio-1561, ¶ 32 (7th Dist.).
{¶47} Wolfert is correct that the videos show brief portions of the five-to-six
hours that Wolfert was in A.W.’s apartment. He testified that he and A.W. ate food and
talked after the physical violence, which he cites as proof that the tenor had shifted
before the sexual acts.
{¶48} But the sexual conduct in this case cannot be viewed in isolation. Earlier,
Wolfert choked and punched A.W. while berating and interrogating her for allegedly
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OHIO FIRST DISTRICT COURT OF APPEALS
engaging in sex work. And Wolfert referenced having “just beat the fuck out of [A.W.]”
when he demanded sexual acts from A.W. for his $800 support payment. When A.W.
tried to discuss the matter, Wolfert told her to “shut the fuck up, I don’t want to hear
it, $800 bitch.” Seconds before the sexual conduct, Wolfert suggested that he “might”
follow through with his threats. And when A.W. complained that her jaw hurt during
the fellatio, Wolfert remarked that he could “make it hurt 10 times more.”
{¶49} A reasonable trier of fact could find that Wolfert used the threat of force
to compel A.W. to submit to sexual conduct considering actual threats of physical
violence to A.W. prior to, and during, the sexual conduct. And a reasonable trier of fact
could find that Wolfert, sitting on the couch in his underwear referencing A.W.’s sex
work in a low, ominous tone was inconsistent with an invitation for consensual sexual
conduct. Rather, a rational trier of fact would conclude that Wolfert’s earlier assault
was the subtext of his remarks and served to remind A.W. of what Wolfert might do.
Therefore, the evidence was sufficient to prove that Wolfert used the threat of force to
purposely compel A.W. to engage in multiple acts of sexual conduct.
2. Wolfert’s convictions are not contrary to the weight of the evidence
{¶50} Wolfert also argues that his convictions were against the manifest
weight of the evidence because the totality of the circumstances, including “the
temporal gap, the intervening activities, the passive positioning, and the absence of
contemporaneous threats” prove that he did not use or threaten force to purposely
compel A.W. to submit to sexual conduct.
{¶51} A manifest-weight “challenge looks to whether the State met its burden
of persuasion.” State v. Reillo, Slip Opinion No. 2026-Ohio-2701, ¶ 24. This court may
reverse a conviction as against the manifest weight of the evidence and order a new
trial if it finds, following an independent review of the record, “‘“‘the jury clearly lost
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OHIO FIRST DISTRICT COURT OF APPEALS
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’”’” Id., quoting State v. Brown, 2025-Ohio-2804,
¶ 30, quoting State v. Thompkins, 1997-Ohio-52, ¶ 25, quoting State v. Martin, 20
Ohio App.3d 172 (1st Dist. 1983), paragraph three of the syllabus.
{¶52} The weight of the evidence supports Wolfert’s convictions. Combined,
the footage and A.W.’s testimony weigh heavily in support of the jury’s verdicts and
the conclusion that Wolfert purposely used the threat of force to compel A.W. to
submit to sexual conduct. While Wolfert testified that he never intended to suggest
that he would use force if A.W. did not submit to sexual conduct, the jury disbelieved
his testimony when it found him guilty of rape. As a general rule, we defer to the jury’s
credibility finding as it is in the “superior position to decide which testimony to believe
and which to disregard.” Reillo at ¶ 32. And from our vantage point, Wolfert’s
testimony lacks credibility.
{¶53} We overrule the second assignment of error.
C. Third assignment of error: the trial court failed to make the
necessary consecutive-sentencing findings under R.C. 2929.14(C)
{¶54} Wolfert argues that the trial court erred when it imposed consecutive
sentences without making the findings required by R.C. 2929.14(C)(4). He also argues
that the record does not support the trial court’s findings. We agree with Wolfert that
the trial court failed to make findings necessary for consecutive sentences, rendering
his sentence contrary to law.
{¶55} When issues surrounding consecutive felony sentences are raised on
appeal, we may increase, reduce, modify, or vacate the consecutive sentences if we
clearly and convincingly find “[t]hat the record does not support the sentencing court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
findings under . . . [R.C.] 2929 14[C](4)” or if the consecutive sentences are “contrary
to law.” R.C. 2953.08(G)(2)(a)-(b).
{¶56} When an Ohio court sentences a defendant to prison terms for multiple
criminal offenses, R.C. 2929.41(A) creates a presumption that the prison terms will
run concurrently. See State v. Beatty, 2024-Ohio-5684, ¶ 17; see also State v. Bonnell,
2014-Ohio-3177, ¶ 23. As an exception to that general rule, R.C. 2929.14(C) authorizes
consecutive sentences if the trial court makes certain “statutory findings prior to
imposing consecutive sentences.” Bonnell at ¶ 26; see State v. Matthews, 2024-Ohio1863, ¶ 24 (1st Dist.). The trial court must announce its findings at the sentencing
hearing, thereby giving notice to the defendant and assisting with appellate review.
See Bonnell at ¶ 29; see also State v. Bell, 2025-Ohio-2489, ¶ 19 (3d Dist.); State v.
Corbett, 2023-Ohio-556, ¶ 28 (5th Dist.).
{¶57} Specifically, a court imposing consecutive sentences must find “(1) that
consecutive sentences are necessary to protect the public or to punish the offender; (2)
that consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public; and (3) that one
of the conditions in R.C. 2929.14(C)(4)(a)-(c) applies.” State v. Sprague, 2023-Ohio4343, ¶ 17 (6th Dist.), citing R.C. 2929.14(C)(4). In its sentencing entries, the trial
court cited R.C. 2929.14(C)(4)(b), which allows consecutive sentences if the trial court
finds that:
two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of
conduct adequately reflects the seriousness of the offender’s conduct.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶58} During Wolfert’s sentencing hearing, the trial court failed to find that
consecutive sentences were necessary, proportionate, or justified by the great or
unusual harm caused by offenses committed in the same course of conduct. True, Ohio
law does not require “a word-for-word recitation of the language of the statute” when
imposing consecutive sentences. Mathews at ¶ 27. But the trial court’s findings at the
hearing were limited to felony-sentencing findings and “seriousness and recidivism
factors” under R.C. 2929.11 and 2929.12. Those findings did not satisfy the trial court’s
obligations under R.C. 2929.14(C). See id. at ¶ 28.
{¶59} Therefore, we sustain Wolfert’s third assignment of error, reverse the
imposition of consecutive sentences, and remand this cause to the trial court for a
resentencing hearing to determine whether consecutive sentences should be imposed
and, if so, to make the required R.C. 2929.14(C)(4) findings.
D. Fourth assignment of error: The trial court reasonably denied
Wolfert’s request for a continuance
{¶60} Wolfert’s fourth assignment of error argues that the trial court abused
its discretion when it denied his request to continue his criminal trial based on his
mother’s unexpected travel delay.
{¶61} A trial court’s decision to grant or deny a continuance is an exercise of
its “‘sound discretion.’” State v. Urbina, 2021-Ohio-4254, ¶ 11 (3d Dist.), quoting State
v. Unger, 67 Ohio St.2d 65, 67 (1981). We will reverse the trial court’s denial of
Wolfert’s request for a continuance if Wolfert demonstrates the trial court abused its
discretion. State v. Brown, 2005-Ohio-4590, ¶ 6 (1st Dist.). A trial court abuses its
discretion if its decision is “unreasonable, arbitrary, or unconscionable.” Id.
{¶62} Denying a defendant’s continuance request may affect that defendant’s
fundamental due-process right to a “reasonable opportunity to prepare his case.” State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Sowders, 4 Ohio St.3d 143, 144 (1983). But that certainly is not true in every case.
Id. Rather, such a denial violates a defendant’s due-process rights when it is based on
“a myopic insistence upon expeditiousness in the face of a justifiable request for
delay.” Unger v. Saralife 376 U.S. 575, 589 (1964). Whether a trial court’s denial of a
continuance is “so arbitrary as to violate due process” depends on the “circumstances
present” and “particularly in the reasons presented to the trial judge.” Id.
{¶63} The decision to grant or deny a continuance rests on competing
interests. So, the “trial court must balance the need to control its docket, and the right
of the nonmoving party to a disposition of the cause, against the prejudice to the
moving party resulting from failure to grant the continuance requested.” State v.
Packer, 2010-Ohio-2627, ¶ 24 (6th Dist.). Ohio courts have identified several factors
that bear on a court’s decision to grant or deny a continuance, including:
(1) the length of the delay requested; (2) whether other continuances
have been granted; (3) the inconvenience to the litigants, witnesses,
opposing counsel, and the court; (4) whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived; (5)
whether the defendant has contributed to the circumstance that gives
rise to the request for a continuance; and (6) other relevant factors.
State v. Stegall, 2012-Ohio-3792, ¶ 33 (1st Dist.).
{¶64} First, the number of continuances granted to Wolfert supports the trial
court’s decision. The trial court had already granted Wolfert six continuances that
postponed his trial before it denied Wolfert’s final request. Wolfert’s trial initially was
scheduled for February 2025. Wolfert’s continuances, combined with the State’s lone
continuance, moved his trial date to July 2025.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} Second, Wolfert’s open-ended and vague request weighed in favor of the
trial court’s decision. Wolfert sought another continuance 18 minutes before trial was
set to begin and based the request on his mother’s unavailability to testify as a “key
witness” in his defense. When a party moves for a continuance “to secure the
attendance of witnesses, ‘it is incumbent upon the moving party to show that such
witnesses would have given substantial favorable evidence and that they were
available and willing to testify.’” State v. Komadina, 2003-Ohio-1800, ¶ 32 (9th Dist.),
quoting State v. Meek, 1997 Ohio App. LEXIS 193 (9th Dist. Jan. 22, 1997). Courts
have affirmed a trial court’s decision to deny a request for a continuance based on “the
lack of information presented to the trial court at the time of the request.” Sowders, 4
Ohio St.3d 145; see Unger, 67 Ohio St.2d at 69; Komadina at ¶ 32 (holding that a
motion for a continuance to secure a “critical witness” who “did witness some of the
events in dispute” failed to convey “how the testimony would be favorable to the
defense or give the amount of time it would be necessary to locate [the witness].”).
{¶66} Wolfert’s motion informed the trial court that his mother was
vacationing in Germany with her husband, who was injured before the two were
scheduled to return to Ohio, and could not leave Germany before the trial. Trial
counsel learned this information the Friday before the Monday trial date, and he
promised to provide the trial court with documentation at some point in the future.
Wolfert identified his mother as a “key witness” who would “provide testimony for the
Defense that no other witness can provide, and can provide necessary impeachment
of the State’s chief witness depending on her testimony.” Wolfert’s request was vague
and indefinite as it did not explain when his mother would be available to testify.4
4 Wolfert did not ask the court for permission for his mother’s remote participation under Crim.R.
40(B).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶67} Considering the trial court’s previously granting six continuances and
the vague, open-ended nature of Wolfert’s request for a seventh continuance, the trial
court’s decision denying Wolfert’s request did not rise to an abuse of discretion.
Therefore, we overrule his fourth assignment of error.
III. Conclusion
{¶68} We overrule Wolfert’s first, second, and fourth assignments of error and
affirm his convictions. But we sustain Wolfert’s third assignment of error, reverse the
consecutive nature of his sentences, and remand the cause to the trial court to
determine whether consecutive sentences are appropriate, and if so, to make the
required findings under R.C. 2929.14(C)(4).
Judgment accordingly.
CROUSE, P.J., and NESTOR, J., concur.
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