STATE OF OHIO v. MARC ANTHONY FLORA

{¶1} Defendant-appellant, Marc Flora, appeals from a Mahoning County

Common Pleas Court judgment sentencing him to life in prison with parole eligibility after

30 years on his aggravated murder conviction, following his guilty plea.

{¶2} A Mahoning County Grand Jury indicted appellant on aggravated murder,

an unspecified felony in violation of R.C. 2903.01(A)(F); aggravated murder, an

unspecified felony in violation of R.C. 2903.01(C)(F); and murder, an unspecified felony

in violation of R.C. 2903.02(A)(D). These charges arose from allegations that appellant

stabbed his one-year-old daughter to death. Appellant initially entered pleas of not guilty

and not guilty by reason of insanity.

{¶3} Appellant faced potential sentences of three terms of life in prison, without

the possibility of parole. After negotiations with plaintiff-appellee, the State of Ohio,

appellant entered into a plea agreement. Per the terms of the agreement, appellant

changed his plea to guilty to the second aggravated murder count. In exchange, the state

dismissed the other aggravated murder count and the murder count. The state would

also recommend a sentence of life in prison with parole eligibility after 30 years.

{¶4} The trial court conducted a thorough change of plea hearing before

accepting appellant’s plea. During the hearing, the court explained to appellant that he

faced the penalty of life in prison with either parole eligibility after 20 years, parole

eligibility after 25 years, parole eligibility after 30 years, or no possibility of parole. (Tr.

13-14). On the parties’ agreement, the trial court proceeded directly to sentencing.

{¶5} The court heard argument in mitigation from appellant’s counsel, heard

from the victim’s uncle, and considered a victim-impact statement from the victim’s

mother. The court then sentenced appellant to life imprisonment with parole eligibility

after 30 years.

{¶6} Appellant filed a timely notice of appeal on May 31, 2019. He now raises

a single assignment of error for our review.

{¶7} Appellant’s sole assignment of error states:

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Case No. 19 MA 0063

THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM

SENTENCE ON MARK [sic.] FLORA.

{¶8} Appellant argues a trial court cannot impose a maximum sentence based

on the belief that the defendant is guilty of a greater offense. He asserts that in this case,

the trial court demonstrated a bias against him because the court believed he should have

been indicted on capital charges.

{¶9} In support of his argument, appellant cites to the trial court’s comment:

“And personally, frankly, life without parole is too nice for you. You should be indicted for

a capital offense and prosecuted for a capital offense. Why you weren’t defies

explanation.” (Tr. 29). Appellant asserts the trial court gave no other reason for

sentencing him to the maximum sentence of life in prison. He claims the court should

have given more support for his sentence.

{¶10} Pursuant to R.C. 2929.03(A)(1), a sentencing court shall impose one of

four options when sentencing an offender for aggravated murder: life imprisonment

without parole, life imprisonment with parole eligibility after 20 years, life imprisonment

with parole eligibility after 25 years, or life imprisonment with parole eligibility after 30

years. In this case, appellant did not receive the maximum sentence as he claims. The

maximum sentence is life imprisonment without parole and appellant was sentenced to

life imprisonment with parole eligibility after 30 years.

{¶11} According to R.C. 2953.08(D)(3), a sentence imposed for aggravated

murder or murder pursuant to R.C. 2929.02 to 2929.06 is not subject to review.

{¶12} In examining this statute recently, this court cited to the Ohio Supreme

Court’s comment in State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d

690. State v. Austin, 7th Dist. Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 66, appeal

not allowed, 156 Ohio St.3d 1447, 2019-Ohio-2498, 125 N.E.3d 917. We noted that the

Ohio Supreme Court has recognized that R.C. 2953.08(D)(3) is unambiguous. Id. “The

Court opined that the statute, ‘clearly means what it says: such a sentence cannot be

reviewed.’” Id. at ¶ 66, quoting Porterfield at ¶ 17.

{¶13} The First District has pointed out that “[o]ne justice of the United States

Supreme Court has found R.C. 2953.08(D)(3)’s prohibition on appellate review to be

‘deeply concerning[.]’” State v. Smith, 1st Dist. Hamilton No. C-180227, 2020-Ohio-649,

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¶ 40, quoting Campbell v. United States, ___ U.S. ___, 138 S.Ct. 1059, 1059, 200 L.Ed.2d

502 (2018) (Sotomayor, J., respecting denial of certiorari). Nonetheless, the court held it

was bound by the dictates of the statute and, therefore review of the appellant’s 33-yearsto-life sentence was precluded. Id.

{¶14} As set above, the Ohio Supreme Court has made clear that sentences for

aggravated murder and murder are not reviewable. Porterfield, supra, at ¶ 17. Thus, this

court cannot undertake a review of appellant’s aggravated murder sentence.

For the reasons stated above, this appeal is dismissed