Tony Cercy’s Attorneys Push Back on Proposed Sentencing Testimony
Natrona County District Court should forbid the testimony by the owner of a strip club about an alleged assault when convicted sex offender Tony Cercy is sentenced next week, his attorneys wrote.
"Mr. Blonigen's attempt to further poison public opinion against Mr. Cercy so close to sentencing should not be tolerated," Cercy attorneys -- Ian Sandefer of Casper and Jeffrey Pagliuca of Denver -- wrote in a court document filed on Friday.
Cercy was convicted in a trial in Hot Springs County in November for third-degree sexual assault of a woman at his former Alcova house in June 2017. He faces up to 15 years of imprisonment.
Former District Attorney Mike Blonigen, who prosecuted Cercy, will be the special prosecutor for the sentencing set for Feb. 27 and has asked the court to allow him to call two people -- Sonny Pilcher and Derek Hamilton -- who saw the alleged incident at the Rack's Gentlemen's Club 10 years ago.
He cited a 2013 Wyoming Supreme Court ruling that allows using "uncharged or unconvinced conduct" during sentencing proceedings.
But Cercy's attorneys called that request another example to impugn his character, an attempt to turn the sentencing hearing into a disgraceful spectacle, another instance of trying him through the media, and a case of prosecutorial misconduct.
Even worse, the chief witness to the alleged decade-old incident is Rack's owner Pilcher, they wrote. "Mr. Pilcher is a convicted felon who pled guilty to lying to the government and was sentenced to a year in federal prison. On top of his criminal conviction, in a different matter, a bankruptcy court judge found Mr. Pilcher intentionally made multiple false statements to the court."
Besides the testimony from "an unreliable convicted felon," Blonigen knows the alleged victim disputes what he claimed what happened, and that she has told law enforcement that she doesn't agree with Pilcher's story, according to Sandefer and Pagliuca.
"The law does not allow Mr. Blonigen to present testimony from two private citizens -- one with a history of lying to the government -- to testify about an incident that supposedly happened nearly ten years ago, that was not reported to the police, for which no statements were taken at or near the time of the alleged event, and for which there are not related or corroborating documents," they wrote.
Likewise, they wrote Blonigen does not intend to called the alleged victim.
Wyoming law permits only evidence -- notably prior criminal history -- at a sentencing hearing that is sufficiently reliable to satisfy due process. But if the court somehow agrees that the proposed testimony by Pilcher and Hamiton is appropriate, attorneys wrote the incident at Rack's and the third-degree sexual assault conviction are unrelated.
"Accordingly, Mr. Cercy asks the Court to protect Due Process and preclude Mr. Blonigen from calling witnesses at sentencing to testify to the unrelated, uncorroborated, and unreliable alleged prior incident of physical violence," Sandefer and Pagliuca wrote.