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March 13, 2026 Get Citation Alerts Download PDF Add Note

State v. Lopez

Supreme Court of Kansas

• Citations: None known

• Docket Number: 128381

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

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Combined Opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 128,381
128,517

STATE OF KANSAS,
Appellee,

v.

DANIEL OSWALD LOPEZ,
Appellant.

SYLLABUS BY THE COURT

1.
Under K.S.A. 21-6620(c)(1)(A), (2)(A) and K.S.A. 21-6623, a defendant
convicted of first-degree premeditated murder must be sentenced to life imprisonment
without the possibility of parole for 50 years unless, after reviewing mitigating
circumstances, the district court finds substantial and compelling reasons to impose a
departure sentence of life imprisonment without the possibility of parole for 25 years.

2.
In this context, a reason is substantial if it is real and of substance and not
imagined or ephemeral. A reason is compelling if the facts of the case force the court to
depart from the statutorily presumed sentence.

3.
An appellate court reviews a district court's ruling on a departure motion for abuse
of discretion. A district court abuses its discretion if its decision is arbitrary, fanciful, or
unreasonable, meaning no reasonable person would agree with the decision; is based on
an error of law; or is based on an error of fact, meaning the factual findings are not

1
supported by substantial competent evidence. The party asserting an abuse of discretion
bears the burden of establishing such abuse.

Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Submitted without oral argument
January 29, 2026. Opinion filed March 13, 2026. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, was on the brief for appellant.

Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: Daniel Oswald Lopez entered guilty pleas to first-degree
premeditated murder and reckless second-degree murder arising from the shooting deaths
of his live-in girlfriend, M.S., and their eight-year-old daughter, N.S. Before sentencing,
Lopez filed a motion asking the district court to reduce the minimum time he must serve
by departing from the mandatory hard 50 life sentence for his first-degree murder
conviction and/or imposing concurrent, rather than consecutive, sentences. At sentencing,
the district court denied Lopez' motion and imposed a hard 50 life sentence for first-
degree murder, consecutive to 184 months' imprisonment for second-degree murder.

On appeal, Lopez argues the district court abused its discretion in denying his
request for a departure sentence. For the reasons discussed below, we conclude the
district court did not abuse its discretion and affirm Lopez' sentence.

FACTUAL AND PROCEDURAL BACKGROUND:

Lopez and M.S. were involved in an on-and-off intimate relationship for several
years. They shared a daughter, N.S. On March 30, 2020, M.S.'s mother went to the

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Wichita residence that M.S. shared with Lopez and eight-year-old N.S. after learning that
M.S. did not show up for work that day. M.S. and N.S. were found dead on the couch
inside, each killed by a single gunshot wound. Based on the condition of the bodies and
the presence of dried blood at the scene, it appeared they had been there for some time.

Law enforcement's investigation led them to suspect Lopez was the shooter and
that he had killed M.S. and N.S. on the evening of March 28. Lopez was eventually taken
into custody on April 10, 2020.

The State charged Lopez with one count each of domestic violence capital murder,
criminal possession of a weapon, and aggravated assault. The State later filed notice of its
intent to seek the death penalty because the case involved the death of more than one
person. See K.S.A. 21-6624(b).

The case proceeded toward trial, but the parties ultimately entered into a plea
agreement in June 2024. Under the agreement, Lopez pled guilty to amended charges of
first-degree premeditated murder for killing M.S. and reckless second-degree murder for
killing N.S. In exchange for Lopez' guilty pleas, the State dismissed the remaining counts
in the case and recommended the court impose consecutive sentences of life without the
possibility of parole for 50 years for the first-degree murder conviction and the high
number in the appropriate sentencing grid box for the second-degree murder conviction,
or 184 months based on Lopez' anticipated criminal history score of E. The plea
agreement allowed Lopez to argue for any legal sentence, while the State reserved the
right to object to any request for departure and/or concurrent sentences.

As allowed by the plea agreement, Lopez filed a motion for a downward departure
sentence. Noting that the presumptive sentence for his crimes would result in a minimum
65-year sentence if imposed consecutively, Lopez asked the court to depart from the
presumptive hard 50 sentence for first-degree premeditated murder and/or impose

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concurrent sentences, which would result in mandatory minimum sentences ranging from
25 years to 50 years. See K.S.A. 21-6620(c)(1)(A) and K.S.A. 21-6623 (mandatory
minimum sentence for first-degree premeditated murder is life with no possibility of
parole for 50 years); K.S.A. 21-5403(a)(2), (b)(2) (reckless second-degree murder is a
severity level 2, person felony); K.S.A. 21-6804(a) (high number in sentencing guidelines
grid for severity level 2 felony and criminal history score of E is 184 months).

Lopez claimed several factors existed that supported substantial and compelling
reasons to depart from the presumptive sentence, including:

• his acceptance of responsibility for his actions as reflected by his guilty pleas;
• the nonviolent and unrelated nature of his prior criminal offenses;
• he suffers from multiple mental disorders;
• his early and continuous drug use impacted his brain structure and interfered with
his ability to make decisions and understand the negative consequences of his
behavior;
• his risk to commit future violence in prison was low;
• he had made rehabilitative efforts and had a desire for reformation; and
• the benefit to community safety interests by providing some hope of possible
release, which encourages compliance and positive behavior.

In support of these factors, Lopez attached three medical reports to his motion.
First, he relied on a psychological evaluation performed in October 2020 that described
Lopez' reported family background, childhood, substance abuse, and medical history. The
psychologist diagnosed Lopez with various drug and alcohol use disorders, generalized
anxiety disorder, unspecified depressive disorder, and possible antisocial personality
disorder. The psychologist also referred to research showing that childhood drug and
alcohol abuse can affect brain functioning and development. Given the magnitude of
Lopez' reported substance abuse starting at a young age, the psychologist found there was

4
a high likelihood that Lopez' brain functioning and development had been compromised.
Further, the long-term effects of his reported methamphetamine use included "changes in
brain structure and function, deficits in thinking and motor skills, increased distractibility,
memory loss, aggressive or violent behavior, mood disturbances and possible psychosis."

Second, Lopez relied on an expert toxicologist's assessment of his lifetime
substance use, including his use of intoxicating substances around the time of his arrest in
March 2020. The assessment also referred to the adverse effects of drugs on the
adolescent brain and the effects of long-term drug use, concluding that Lopez' brain
function was negatively disrupted in March 2020 "in areas critical to cognition,
perception, motivation, memory, learning, judgment, and behavioral control" and
"contributed to his impulsive behavior, played a role in his poor decision-making,
impetuous and reckless behavior, and interfered with his ability to understand the
negative consequences of his behavior."

Third and finally, Lopez relied on a psychologist's forensic assessment of his risk
of committing serious violent offenses during five decades of incarceration. The
assessment concluded that Lopez' risk for serious violence over a long-term prison
sentence was low, similar to other inmates convicted of murder.

At sentencing, the district court first noted Lopez committed the murders while he
was on probation in another case, 18 CR 1659, for convictions of possession of
methamphetamine and criminal possession of a weapon by a convicted felon. After
Lopez stipulated to violating the terms of probation, the court revoked his probation and,
based on him committing these new, "very extreme" person crimes, ordered Lopez to
serve the original 31-month prison sentence, consecutive to any other case.

The district court then proceeded with sentencing in the present case. The court
stated it had received several victim impact statements, and the prosecutor read a letter

5
from M.S.'s mother about M.S. and N.S. and how their deaths had affected her. After
reading the letter, the prosecutor argued against Lopez' departure motion, noting he had
already received leniency in exchange for his plea when the State agreed to take the death
penalty off the table; emphasizing the domestic violence nature of the crimes that also
involved killing his daughter; and pointing out that after the killings, Lopez left the
victims to be discovered by M.S.'s mother a day and a half later.

In response, defense counsel argued several mitigating factors supported a
departure sentence, specifically focusing on Lopez' anxiety and drug addiction in addition
to his acceptance of responsibility and work toward rehabilitation. Lopez then personally
addressed the family of M.S. and N.S., apologizing for his actions and expressing his
remorse.

Before announcing Lopez' sentence, the district court explained that it had
considered "the nature and circumstances of the crimes[;] the history, character, and
condition of the defendant[;] the lowest minimum term which, in the opinion of the
Court, is consistent with the public's safety[;] the needs of the defendant[;] and the
seriousness of the defendant's crimes." The court then imposed the sentence requested by
the State: life without the possibility of parole for 50 years consecutive to a term of 184
months' imprisonment. The court also ordered these sentences to run consecutive to the
sentence imposed as a result of Lopez' probation violation in Case No. 18 CR 1659.

After announcing Lopez' sentence, the judge addressed the departure motion:

"As it relates to the motion to depart, these crimes were committed with extreme
violence that directly led to two people losing their lives. After I read through the letters
that were submitted, incorporating some of their comments, your intentional acts, Mr.
Lopez, have not only ended these lives, but have affected a whole community of their
friends and loved ones. These acts were committed in the home you shared by someone
that they loved and trusted.

6
"Based upon all of that, your motion to depart is denied. The Court finds no
substantial and compelling reasons to depart from the Kansas Sentencing Guidelines at
this point in time."

Lopez brought this direct appeal over which we have jurisdiction. See K.S.A. 60-
2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 22-3601);
K.S.A. 22-3601(b)(3)-(4) (direct appeals to Supreme Court allowed for life sentence and
off-grid crimes); K.S.A. 21-5402(b) (first-degree murder is an off-grid person felony).

ANALYSIS

In Kansas, a sentencing court must order a defendant convicted of first-degree
premeditated murder to a hard 50 life sentence unless, based on a review of mitigating
circumstances, the judge finds substantial and compelling reasons to impose a departure
sentence to life without the possibility of parole for 25 years. See K.S.A. 21-
6620(c)(1)(A), (c)(2)(A); K.S.A. 21-6623; State v. Zongker, 319 Kan. 411, 433, 555 P.3d
698 (2024). In this context, we have interpreted the term "substantial" to mean something
real and of substance, not imagined or ephemeral. And a compelling reason is one based
on the facts of the case that forces a court to depart from the statutorily presumed
sentence. 319 Kan. at 433.

We examine a district court's ruling on a departure motion for abuse of discretion.
State v. Young, 320 Kan. 354, 359-60, 568 P.3d 498 (2025) (abuse of discretion standard
applies to rulings regarding statutory and nonstatutory departure factors). A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) it is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) it is based on an error of fact, i.e., if substantial competent evidence does not

7
support the court's factual findings. State v. Goens, 317 Kan. 616, 620, 535 P.3d 1116
(2023).

The party asserting the district court abused its discretion bears the burden of
showing such abuse of discretion. State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134
(2024). Lopez does not argue the court committed an error of law or fact, so he has
waived or abandoned any such argument. See State v. Davis, 313 Kan. 244, 248, 485
P.3d 174 (2021) (An issue not briefed is deemed waived or abandoned.). Rather, Lopez
focuses his arguments on the reasonableness of the court's decision to deny his motion.
Although the issue statement in Lopez' brief suggests that he is also challenging the
court's decision to impose consecutive sentences, he makes no separate argument about
this aspect of his sentence, so it is also waived. See State v. Meggerson, 312 Kan. 238,
246, 474 P.3d 761 (2020) (A point raised incidentally in a brief and not argued therein is
deemed waived or abandoned.).

K.S.A. 21-6625(a) sets forth a nonexclusive list of eight mitigating factors a court
may consider when deciding whether to depart. Lopez argues that the following factors
constitute substantial and compelling reasons for reducing his hard 50 mandatory
minimum sentence to a hard 25.

1. Remorse and acceptance of responsibility

Lopez first argues that his remorse and acceptance of responsibility support a
reduction of the minimum sentence. Although not listed under K.S.A. 21-6625, this court
has recognized both reasons can be mitigating factors supporting a sentencing departure.
See State v. Morley, 312 Kan. 702, 713-14, 479 P.3d 928 (2021) (acceptance of
responsibility); State v. McNabb, 312 Kan. 609, 614, 478 P.3d 769 (2021) (remorse).
Lopez points to the remorse he expressed at the sentencing hearing and notes that his
guilty pleas helped the State and its witnesses avoid the significant time and expense

8
associated with trial preparation. Lopez acknowledges that he received benefits in
exchange for his guilty pleas but asserts that even if this factor was not sufficient on its
own to grant a departure, it should be considered along with the other proffered
mitigating factors.

As Lopez concedes, he was afforded tremendous leniency by pleading guilty to
the crimes. The prosecutor discussed this leniency at sentencing, which included reduced
murder charges, the dismissal of two additional charges, and the State's agreement not to
seek the death penalty. Given the advantages Lopez gained by accepting responsibility, a
reasonable person could agree that Lopez' remorse and acceptance of responsibility did
not rise to a substantial and compelling reason to depart.

1. Nonviolent nature of Lopez' prior offenses

A defendant's lack of "significant history of prior criminal activity" is a mitigating
factor per K.S.A. 21-6625(a)(1). The parties agreed at sentencing that Lopez' criminal
history score was E, based in part on nine prior nonperson felonies. Given this record of
prior criminal activity, a reasonable person could conclude that Lopez did not lack a
significant history of prior criminal activity and that the mitigating circumstance set forth
in K.S.A. 21-6625(a)(1) did not apply.

But this court has recognized that "under some circumstances a defendant's
criminal history can create a substantial and compelling reason for departure when
something distinguishes that history from the present charges." Young, 320 Kan. at 361.
To that end, Lopez emphasizes the unrelated nature of his prior convictions—largely
drug and property crimes—to the present murder charges. He asserts that his criminal
history does not reflect a pattern of violence, suggesting his recent crimes were out of
character and likely linked to his mental issues and impaired decision-making ability.

9
Although Lopez' criminal history includes no person felony crimes, we cannot
ignore the fact that at the time he committed the murders, Lopez was on probation for
convictions of possession of methamphetamine and criminal possession of a weapon.
Under those circumstances, the district judge could reasonably conclude that Lopez'
significant history of prior criminal activity—which included his failure to abide by the
law while on probation—was not a substantial and compelling reason to depart.

1. Mental disorders and impaired brain function

A defendant's psychological state can be a mitigating factor under K.S.A. 21-
6625(a)(2) (crime committed while defendant was under the influence of extreme mental
or emotional disturbances) and (a)(6) (capacity of defendant to appreciate criminality of
conduct or to conform conduct to requirements of the law was substantially impaired).

Lopez claims that family dysfunction, anxiety, and depression caused his early and
long-term drug use, which resulted in impaired brain function and development that
affected his ability to make rational decisions or control his impulses and had the
potential to cause aggressive or violent behavior, possible psychosis, paranoia, and
delusion. Citing preliminary hearing witness testimony that on the night of the murders
he appeared to be paranoid and high or coming down from a high, Lopez suggests his
drug-addled brain could be the reason he committed the crimes for no apparent reason
and renders him less culpable than "an individual who coolly plans and commits murder
to benefit financially, or escape consequences for other behavior."

Lopez' arguments blaming his crimes on brain impairment caused by his drug use
conflict with his earlier claim that he accepted responsibility for his actions. Additionally,
Lopez pled guilty to the first-degree premeditated murder of M.S., agreeing with the
district court that there was a factual basis for the plea and thereby admitting he was
capable of forming a premeditated intent to kill. Thus, a reasonable person could

10
conclude that Lopez' mental disorders and impaired brain function did not constitute
substantial and compelling reasons to depart from the presumptive sentence. See, e.g.,
State v. Mitchell, 320 Kan. 775, 778-80, 571 P.3d 604 (2025) (affirming denial of motion
to depart from hard 50 sentence even though defendant presented evidence that he
suffered from severe mental illness and extreme emotional disturbance at the time of the
crimes); State v. McLinn, 307 Kan. 307, 348-49, 409 P.3d 1 (2018) (affirming denial of
motion to depart from hard 50 sentence even though defendant presented evidence that
she had no significant history of prior criminal behavior and she was under the influence
of extreme mental or emotional disturbances); State v. Murillo, 269 Kan. 281, 289-90, 7
P.3d 264 (2000) (affirming denial of motion to depart from hard 40 sentence even though
defendant argued he was under extreme mental or emotional disturbance due to drug use
and lacked capacity to appreciate the criminality of his conduct).

1. Low risk for future violence

Next, Lopez argues that his low risk for future violence is a mitigating factor that
the district court should have found supports his request for departure because it shows he
is not a threat to society. This court has considered future dangerousness as a
nonstatutory mitigating factor. See, e.g., Young, 320 Kan. at 362; State v. Newman-
Caddell, 317 Kan. 251, 258, 527 P.3d 911 (2023).

In support of his argument, Lopez relied on a forensic psychological evaluation
completed by Dr. Daniel Murrie, an expert in assessing the risk of future violence. The
report suggested Lopez presented a low risk of committing serious violent misconduct
during a lengthy term of incarceration, with risk levels comparable to similarly situated
inmates convicted of murder. But the risk of violence assessment by Dr. Murrie focused
on Lopez' propensity for violence in prison, not the community, undermining its
usefulness in evaluating this factor. Notably, Dr. Murrie's finding that Lopez was at low
risk for future violence appears to apply generally to all inmates convicted of murder and

11
is not entirely unique to Lopez. In assessing Lopez' individual risk of violence, Dr.
Murrie identified a "significant incident" that occurred at the Sedgwick County jail.
During that incident, Lopez and another inmate repeatedly punched, kicked, and stomped
a third inmate who had "disrespected or taunted" Lopez. Although the assessment
concluded that this single incident did not necessarily suggest a high risk of prison
violence, it "certainly precludes a conclusion that Mr. Lopez poses negligible risk of
prison violence" and "likely increases his otherwise low risk of violence in prison."

A reasonable person could agree that the risk of future violence assessment was
not a substantial and compelling reason justifying departure.

1. Rehabilitative efforts and beneficial effect of an earlier parole date

Finally, Lopez points to his efforts at rehabilitation and the beneficial effect of
earlier parole eligibility to support departure. He contends that an earlier parole date
would motivate him to demonstrate positive behavior while incarcerated and better serve
the goal of rehabilitation.

A defendant's amenability to rehabilitation, standing alone, will not constitute a
substantial and compelling reason to depart from a presumptive sentence. But a district
court can include this evidence in "the overall picture . . . if other factors warrant a
departure." State v. Theurer, 50 Kan. App. 2d 1203, 1235, 337 P.3d 725 (2014). Given
Lopez' failure to show that any of the other alleged mitigating factors warranted a
departure, his rehabilitative potential cannot constitute a substantial and compelling
reason to depart.

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CONCLUSION

While Lopez offered evidence in support of the above mitigating factors, "the
existence of a factor that is arguably mitigating does not necessarily mean that such a
factor is 'substantial and compelling.'" State v. Blevins, 313 Kan. 413, 440, 485 P.3d 1175
(2021); see Young, 320 Kan. at 360 ("Even if a factor can be a mitigating factor,
departure may not be justified."). In denying Lopez' departure motion, the district court
noted that "these crimes were committed with extreme violence that directly led to two
people losing their lives . . . in the home you shared by someone that they loved and
trusted." Because a reasonable person could agree that Lopez failed to present substantial
and compelling reasons to depart from the hard 50 sentence, the district court did not
abuse its discretion in denying Lopez' departure motion.

The judgment of the district court is affirmed.

LUCKERT, J., not participating.

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