Steele presents an interesting issue of new claims on or after remand.
In addition to this initial plenary appellate review under Article 66, a non trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review.").
Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel.
Cheers, Phil Cave.
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