No. 13863 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICHARD SANDERS, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Calton and Stephens, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Jack Yardley, County Attorney, Livingston, Montana 

Submitted: February 27, 1978 

Decided : MAR 1 7 1978 

- y-2 Filed: MFg ' . 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from an order of the District Court, 

Park County, denying defendant's motion for post-conviction 

relief. 

This is the third occasion that this case has been 

before this Court. In March 1970, appellant was charged 

with three counts of felony assault. Count I alleged he 

assaulted three itinerant magazine sales girls. Count I1 

alleged defendant pointed a loaded gun at a tourist. Count 

I11 alleged defendant assaulted a former employee. Count I 

was dismissed for lack of evidence. Defendant was convicted 

on Counts I1 and 111, but the convictions were reversed on 

appeal as extraneous evidence had been improperly allowed. 

State v. Sanders, (1971), 158 Mont. 113, 489 P.2d 371. 

Defendant was retried and convicted of second degree 

assault in 1972. That conviction was appealed on lack of 

speedy trial and was affirmed. State v. Sanders, (1973), 

163 Mont. 209, 516 P.2d 372. Defendant's deferred imposition 

of sentence was revoked and he was sentenced to four years 

in the state prison. Sanders served his term in prison and 

he is no longer incarcerated. 

In December 1973, defendant filed a petition in United 

States District Court for post-conviction relief. The 

petition was referred to the District Court, Sixth Judicial 

District of the State of Montana, in and for the County of 

Park. In April 1977, the District Court entered an order 

denying all post-conviction remedies. Appellant appeals 

from that order. 

In March 1970, appellant was charged with three counts 

of felonious assault. After his arrest, appellant contacted 

Dan Yardley, an attorney who had previously handled civil 
matters for the appellant, regarding representation on the 

criminal charges. At the time of this consultation, Jack 

Yardley, the brother and partner of Dan Yardley, was the 

city attorney of Livingston, Montana. According to the 

affidavit by Jack Yardley, dated October 27, 1975, as soon 

as Jack became aware that appellant was making inquiry of 

his partner, Dan Yardley, Jack entered the office and 

advised Dan Yardley and appellant and his wife that a 

potential conflict could arise, because he was the city 

attorney, and members of the Livingston police department 

were involved in the case and thus perspective witnesses 

against Sanders. Because of this potential conflict, Dan 

Yardley then declined to accept the case and no fee was 

charged. 

Jack Yardley stated in his affidavit: 

"That at no time did affiant learn or know of 

any of the circumstances or defenses of RICHARD 

SANDERS as to the charges of second degree assault 

in March 1970." 

Appellant was convicted of the charges in 1970, appealed, 

and the conviction was reversed by the Montana Supreme 

Court. State v. Sanders, (1971), 158 Mont. 113, 489 P.2d 

371. In January 1971, following Sanders' conviction at the 

first trial, Jack Yardley became the county attorney for 

Park County, Montana. Subsequent to the reversal of his 

conviction, appellant was retried in 1972 and convicted of 

one count of felonious assault. The prosecuting attorney on 

the retrial was Jack Yardley. 

Appellant based his petition for post-conviction relief 

upon the fact that the prosecutor at appellant's 1972 trial 

was the partner of the attorney whom he initially consulted 

prior to the f i r s t t r i a l regarding representation. 

In an affidavit in support of the petition for post- 
conviction relief filed by appellant and his wife in December 1973, appellant recites the above facts and states that 

during the consultation with Dan Yardley they discussed in 

complete detail the events of the day of the alleged assault 

and possible theories of defense, and that no doubt Jack 

Yardley had occasion to hear the entire conversation. 

iio objections were made at trial to the qualifications 

of Jack Yardley to prosecute the case on behalf of the 

state. This issue was first raised in appellant's petition 

for post-conviction relief filed after his conviction was 

affirmed on appeal in 1973, 19 months after retrial. 

The sole issue on appeal is whether or not Sanders is 

entitled to post-conviction relief based upon the alleged 

prior involvement of the prosecutor with preliminary defense 

matters? We will assume, for the purpose of discussion of 

this issue, that appellant's allegations are true. 

To resolve the issue, it is necessary to look at the 

secondary issue--whether or not appellant waived his privilege to assert the alleged prosecutorial conflict of interest? 

Appellant first raised the question of the county 

attorney's disqualification in a petition for post-conviction 

relief filed in the United States District Court 19 months 

after that conviction had been affirmed on appeal. No 

objection was made, although appellant had to be aware of 

the alleged conflict at the time of trial. 

There are no Montana cases directly on this issue, but 

this Court has recognized that a defendant may waive a legal 

right. In State v. Gallagher, (1973), 162 Mont. 155, 509 

P.2d 852, the defendant was given a choice between experienced court appointed counsel and counsel who had previously 

prosecuted defendant in another trial. Defendant chose as 
his defense counsel the attorney who had previously prosecuted 

him. This Court held defendant, by his conduct, had waived 

any right to demand a new trial based on alleged conflict of 

the attorney. 

An assertion of disqualification of a prosecuting 

attorney because of his relationship with the accused is a 

privilege of the latter which may be waived in various ways, 

principally by failure to raise the point at the earliest 

possible time. Disqualification of Prosecuting Attorney on 

Account of Relationship with Accused, Anno. 31 ALR3d 953, 

989. Gajewski v. United States, (8th Cir. 1963), 321 F.2d 

261, cert.den. 375 U.S. 968, 11 L ed 2d 416, 84 S.Ct. 486. 

In the instant case appellant failed to object to 

Yardley prosecuting him at the trial level, based on alleged 

conflict of interest. Instead, he stood by and waited for 

the outcome. When the outcome was unfavorable to him, he 

raised the conflict issue as a post-conviction remedy, 

approximately 19 months after his conviction was affirmed. 

Appellant cannot sit by and speculate on the outcome of 

his conviction and then raise this issue after the verdict 

has been entered. Appellant waived his opportunity to 

object to Yardley prosecuting him by failing to object to 

the prosecutor's qualifications at trial. 

Therefore, all post-conviction relief is denied. 

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Justice 

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We Concur: 

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Chief Justice