### 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: 

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## 1978 

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### Filed:

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.Mr. Justice Gene B. Daly delivered the Opinion of the Court.
his 

### is an appeal from an order of the DistrictCourt, Park County, denying defendant's motion for post-conviction relief. This 

### is the third occasion that this case has been before this Court. InMarch 1970, appellant was charged with three counts of felony assault. Count I alleged he assaulted three itinerantmagazine 

### sales girls. Count 

### I1 alleged defendant pointed a loaded gun ata 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

### werereversed on appeal asextraneous evidence had been improperly allowed. State

### v. Sanders, (1971), 158Mont. 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. Statev. Sanders, (1973), 163Mont. 209, 516 P.2d 372. Defendant's deferred imposition of sentence

### was revoked and he 

### was sentenced to four years inthe stateprison. Sanders served his 

### terminprison and he 

### is no longer incarcerated. In December 1973, defendant filed a petition inUnited StatesDistrict Court for post-conviction relief. The petitionwas referred tothe District Court, Sixth Judicial District of the Stateof Montana, inand for the County of Park. InApril 1977, the District Court entered an order denying allpost-conviction remedies. Appellant appeals from that order. InMarch 1970, appellant

### was charged with three counts of felonious assault. After his arrest, appellant contacted Dan Yardley, an attorney who had previously handled civilmatters for the appellant, regarding representation on the criminal charges. Atthe 

### timeof 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 appellantwas making inquiry of his partner, Dan Yardley, Jack entered the office and advised Dan Yardley and appellant and hiswife that a potential conflict could arise, because he was the city attorney, and members of the Livingston police department
were involved inthe case and thus perspective witnesses against Sanders. Because of thispotential conflict, Dan Yardley then declined to accept the case and no feewas charged. Jack Yardley stated inhis affidavit: "That atno 

### timedid affiant learn or know of any of the circumstances or defenses of RICHARD SANDERS as to the charges of second degree assault inMarch 1970." Appellant was convicted of the charges in 1970, appealed, and the conviction was reversed by the Montana Supreme Court. Statev. Sanders, (1971), 158 Mont. 113, 489 P.2d 371. InJanuary 1971, following Sanders' conviction atthe first

### trial, Jack Yardley became the county attorney for Park County, Montana. Subsequent tothe reversal of his conviction, appellant was retried in 1972 and convicted of
one count of felonious assault. The prosecuting attorney on the retrialwas Jack Yardley. Appellant based his petition for post-conviction relief upon the fact that the prosecutor atappellant'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 lregarding representation. In an affidavit insupport of thepetition for post-conviction relief filedby appellant and his wife inDecember 1973, appellant recites the above facts and states that during the consultationwith 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 tohear the entire conversation. iio objections were made attrial to the qualifications of Jack Yardley toprosecute the case on behalf of the 

### state. This issuewas firstraised inappellant's petition for post-conviction relief filed after his conviction was affirmed on appeal in 1973, 19months after retrial. The sole issue on appeal 

### iswhether or not Sanders 

### is entitled topost-conviction relief based upon the alleged prior involvement of the prosecutor with preliminary defense matters? We

### willassume, for the purpose of discussion of this issue, that appellant's allegations are true. To resolve the issue, 

### it 

### is necessary to look atthe secondary issue--whether or not appellantwaived his privilege to assert the alleged prosecutorial conflict of interest? Appellant firstraised the question of the county attorney's disqualification in

### a petition for post-conviction relief filed inthe United States District Court 19 months after that conviction had been affirmed on appeal. No objection was made, although appellant had tobe aware of the alleged conflict

### atthe time of trial. There areno Montana cases directly on this issue, but this Court has recognized that a defendant may waive a legal right. In Statev. Gallagher, (1973), 162Mont. 155, 509 P.2d 852, the defendant was given a choice between experienced court appointed counsel and counsel who had previously prosecuted defendant inanother trial. Defendant chose 

### ashis defense counsel the attorney who had previously prosecuted him. This Court held defendant, by his conduct, had waived any right todemand 

### a new trialbased on alleged conflict of the attorney. An assertion of disqualification of a prosecuting attorney because of his relationshipwith the accused 

### is a privilege of the latterwhich may be waived invarious ways, principally by failure toraise the point atthe earliest possible time. Disqualification of Prosecuting Attorney on Account of Relationship with Accused, Anno. 31 ALR3d 953, 989. Gajewski v. United States, (8thCir. 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 atthe trial level, based on alleged conflictof 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 19months after his conviction was affirmed. Appellant cannot sitby 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 toYardley prosecuting him by failing toobject to the prosecutor's qualifications attrial. Therefore, allpost-conviction relief is denied. 

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/' Justice We Concur: 

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# %& Chief Justice