U.S. v. Steele, 83 M.J. 188

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. if an accused raises an issue for the first time on appeal, a CCA has discretion to determine the circumstances, if any, under which it will apply waiver or forfeiture
2. the power of a CCA to overlook waiver and forfeiture, if it so chooses, stems from the language of Article 66(c), UCMJ, which directs a CCA to affirm only those findings and sentences that it determines, on the basis of the entire record, should be approved
3. although a CCA may choose to review a waived issue, a CCA cannot refuse to review an issue that was not waived; similarly, although a CCA may use its power under Article 66(c), UCMJ, to overlook a forfeiture, it cannot refuse to apply, at a minimum, plain error review
4. if an issue is not waived, then the CCA must review the issue, either for error or for plain error; but if an issue is waived, or no relief is available under plain error review, then the CCA still has discretion under Article 66, UCMJ, to overlook the waiver or forfeiture and address the issue; in deciding how to exercise this discretion, the CCA may consider issues of cause and prejudice
5. a CCA may select its own standard for exercising its discretion under Article 66(c), UCMJ, to review waived issues or forfeited issues where there is no plain error; if it so chooses, the CCA may require a showing of cause and prejudice before it will review such issues
6. in this case, if appellant did not waive his constitutional challenge to the indecent exposure offense, then the CCA should have considered it either for error or plain error; on the other hand, if appellant did waive the issue, then the CCA was under no obligation to review the issue at all, but it could review the issue in the exercise of its discretion under Article 66(c), UCMJ
7. if the CCA determines that a constitutional challenge to the indecent exposure issue was waived, the CCA may choose not to review it further; if the CCA finds that the issue was forfeited, but not waived, then at a minimum the CCA must review it for plain error; in either case, the CCA has discretion to grant relief under its Article 66, UCMJ, powers, notwithstanding a waiver or forfeiture
8. in deciding whether an appellant’s argument was waived or forfeited, the CCA may consider the Rules for Courts-Martial, its own appellate rules, and other principles of appellate litigation established by precedent

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. whether an issue is waived or forfeited is an issue of law that the CAAF can decide

Trial Stages: Appeals: Remedies › Remand

1. in this case, where the CCA’s opinion was unclear on whether appellant waived or forfeited his constitutional challenge to the indecent exposure offense that he raised for the first time in his second appeal, the case is remanded to the CCA to allow it to rule on this question in the first instance or to clarify its prior ruling