Tony Cercy’s Attorneys Ask Wyoming Supreme Court to Toss Conviction
Attorneys for sex offender Tony Cercy have petitioned the Wyoming Supreme Court to dismiss his conviction for sexually assaulting a woman because the U.S. Constitution forbids people from being tried twice for the same crime, otherwise known as double jeopardy.
Likewise, the attorneys asked the court to release Cercy pending its decision on the double jeopardy issue.
"The relief sought is a ruling that Petitioner cannot be jailed unless and until this Court upholds the second prosecution against a double jeopardy challenge," Cercy's attorneys wrote.
The attorneys -- H. Michael Bennett of Cheyenne, Tim Newcomb of Laramie and Sean Connelly of Denver -- recounted how the arrest of Cercy for assaulting a woman at his former house at Alcova Lake in the summer of 2017 led to the trial in February 2018 on counts of first-, second- and third-degree sexual assault.
A jury in Natrona County District Court acquitted Cercy of the first- and second-degree counts, but deadlocked on the third-degree count. Judge Daniel Forgey declared a mistrial.
The victim asked District Attorney Mike Blonigen to retry the third-degree count. Forgey granted the request, and he later ordered the trial to be moved to Hot Springs County at the request of Cercy's attorneys.
After appeals and objections, usually about the double jeopardy issue, the trial was held at the Hot Springs County Court House in Thermopolis where a jury found Cercy guilty on Nov. 21.
Acting on the request of Blonigen and over the objections of Cercy's attorneys, Forgey immediately ordered Cercy to be taken into custody on the grounds that he posed a danger to the community and a flight risk.
On Feb. 27, Forgey sentenced him to a six- to eight-year prison term.
That day, Cercy's attorneys filed the notice to appeal the case to the Wyoming Supreme Court.
On Thursday, Cercy's attorneys said the second prosecution violated double jeopardy because the original three charges were essentially about one incident. They also asked that he be released immediately because of the lengthy appeals process and that he is neither a flight risk nor a danger to the community.
"This clear double jeopardy violation is confirmed by the fact that both trials were all-or-nothing disputes over a single alleged incident that one side graphically described and the other unequivocally denied," the attorneys wrote. "There is no rational way a jury could convict on the third count after acquitting on the first two."
The attorneys also faulted Forgey for ignoring the presentence investigation.
The PSI said Cercy "'would be a "good candidate" for supervised probation in the community,'" he has been a good citizen and prominent businessman, and he has health issues that would further strain the county's jail system that must monitor his health, they wrote.
The attorneys also castigated Blonigen's focus on punishment and disregard of the PSI's discussion of Cercy's lack of a criminal history and his record of community service.
"Nor did he argue that Petitioner posed a risk of future harm; instead, his request for imprisonment focused solely on 'punishment, to deter others, and to restore confidence in a criminal justice system that is far too often viewed as favoring only the rich over the poor,'" they wrote.
Because the case is before the Wyoming Supreme Court, the Wyoming Attorney General's Office will file a response.