2023 WI App 33

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP1705-CR

Complete Title of Case: 

† Petition for Review filed

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CEDRIC TUNG,

DEFENDANT-APPELLANT.

Opinion Filed: July 26, 2023

Submitted on Briefs: June 22, 2022

Oral Argument: 

JUDGES: Brash, C.J., Donald, P.J., and White, J.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

brief of Jeffrey W. Jensen.

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Jacob Wittwer. Assistant attorney general. 
2023 WI App 33

COURT OF APPEALS

DECISION

DATED AND FILED

June 20, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP1705-CR Cir. Ct. No. 2017CF2817

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CEDRIC TUNG,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: MARK A. SANDERS and SANDY A. WILLIAMS, Judges. 

Affirmed. 

Before Brash, C.J., Donald, P.J., and White, J. 

¶1 WHITE, J. Cedric Tung appeals from his judgment of conviction, 

entered upon a jury’s verdict, for first-degree child sexual assault, as well as the 

order denying his motion for postconviction relief. Tung argues that his trial 
No. 2021AP1705-CR

3

counsel abandoned her role as a zealous advocate in his defense, which violated his 

Sixth Amendment right to effective counsel, and constitutes structural error 

requiring a new trial. We conclude that Tung has failed to show that trial counsel 

conceded guilt against his express will or that there was a breakdown in the 

adversarial process. Therefore, we conclude there was no violation of his Sixth 

Amendment rights, we find no structural error, and we affirm. 

BACKGROUND

¶2 Tung was charged with first-degree child sexual assault–sexual 

contact with a child under age thirteen arising out of an incident in June 2017 when 

Tung allegedly touched a seven-year-old girl. Tung, then age nineteen, had been

living off and on for about two years with Charles and his two daughters, Samantha, 

then age seven, and Allison, then age eleven.1 The criminal complaint alleged that 

Tung had called Samantha over to the couch to cuddle with him. While they were 

lying down, Tung pulled up Samantha’s dress and put his hand under her tights but 

over her underwear and rubbed her vaginal area for approximately ten to fifteen 

seconds.

¶3 The following day, on June 11, 2017, Milwaukee Police Department 

(MPD) officers responded to Charles’s call reporting that Tung had sexually 

 

1

 To protect the privacy of Samantha and her family, we refer to her and her family by 

pseudonyms. See WIS. STAT. RULE 809.86 (2021-22). All references to the Wisconsin Statutes 

are to the 2021-22 version unless otherwise noted.
No. 2021AP1705-CR

4

assaulted Samantha. An MPD detective conducted a Mirandized2interview with 

Tung, in which he admitted that he touched Samantha.

¶4 The case proceeded to a jury trial in February 2018.3 In trial counsel’s 

opening argument, she stated that although Tung “minimized everything that was 

going on” in his police interrogation, the defense was “not going to tell you that it 

didn’t happen[.]” “We’re having a trial because [Tung] never meant to have any 

type of sexual contact with this child. It was a pure accident. He’s sleeping, he’s 

tired. We don’t really know exactly what happened.”

¶5 During the State’s case, it called the MPD officer who conducted a 

forensics interview with Samantha on June 12, 2017. The officer testified that 

Samantha told her about Tung touching her by using dolls to show their positioning. 

The State called Samantha, who testified, also aided by dolls, that Tung touched her 

“front butt” and that made her feel “weird.” The State called Charles, who testified 

that he met Tung through church and allowed Tung to stay over at his apartment 

“pretty consistently” over about two years. He testified that on Sunday, June 11, 

2017, Samantha told him that Tung had touched her “down there” the day before.

¶6 Charles testified that he texted Tung about Samantha’s claim, asking 

Tung if he touched her and threatening that he would call the police if Tung did not 

answer. Tung did not answer, so he called 911 to report the matter. Tung replied 

via text to Charles later that day, with his first message stating:

[Charles], I’ve done lots of things in my life that I’m not 

proud of. Some you know, others you don’t and I will have 

to live with that for the rest of my life and if you want to talk 

 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).

3

 The Honorable Mark A. Sanders presided over Tung’s trial and sentencing. We refer to 

Judge Sanders as the trial court. 
No. 2021AP1705-CR

5

fully about that, I’m willing to do so but what I am not is a 

monster and I would have thought you’d know that. 

I’ve lived with you long enough. I’m sorry for not telling 

you what had happened yesterday. Just I was embarrassed 

and didn't know how to bring it up like without sounding bad 

though now I wish I had.

Charles asked Tung where Samantha would have gotten that idea or why she said 

that. Tung replied: “Kids these days are more grown than you realize simply due to 

their environment and maybe when I pushed her the first time, she had gotten the 

wrong idea.” He continued that, “It wasn't until the second time I actually explained 

to her the situation.” Charles asked if Tung’s hand went near Samantha’s “upper 

thigh” or “groin.” Tung replied that he had fallen asleep and “I woke up sometime 

later because I felt someone next to me and I hate sleeping next to someone.” Tung 

stated that Samantha was “cuddling next to” him while he was not “fully awake.” 

He texted, “I pushed her. She tried to again. I pushed her a little harder. I think she 

bumped her head on the lamp post.” Tung continued that he fell asleep and when 

Samantha tried to cuddle him again, he woke up “right away” and “explained to her 

that although it’s okay to cuddle with family I’m not her family, not really, and don’t 

do it again.”

¶7 The State called MPD Detective Steven Wells, who conducted the incustody interview of Tung on June 12, 2017; the recorded interview was played for 

the jury at that point. The detective asked Tung if he touched Samantha’s vagina, 

and after a very long pause, Tung said yes.

¶8 Tung testified in his own defense, stating that he was sleeping on a 

sofa chair in the living room of Charles’s apartment and he knew the girls were 

home. He testified that he felt Samantha lie next to him while he was sleeping and 

he pushed her away from him. He testified that he did not intend to touch Samantha 
No. 2021AP1705-CR

6

in a sexual way, nor did he ever intend to get sexually aroused. He stated that in the 

police interview, the detective did not seem to believe his explanation and that the 

detective stated that the family wanted a “simple admission.” Tung testified, “How 

hard is it to swallow my pride and admit to something even if I didn’t do it but which 

would help me now and not let me get into more troubles in the future.” He believed 

that if he admitted to the police he was guilty, even though he was not, things would 

be “smoothed over” with Charles and his family.

¶9 During cross-examination, Tung had the following exchange with the 

prosecutor:

Q And somehow you were a close integral part of 

[Samantha’s] life and she suddenly out of blue said that you 

touched her, right?

A Correct.

Q You did touch her, right?

A Not correct.

Q No? So you talked to Detective Wells and you said you 

touched her over her underwear, that was not correct?

A It’s correct that I said that. 

Q So, but you didn’t do it?

A But I didn’t do it.

Q So you lied to Detective Wells?

A Yes, I did.

¶10 Later in the cross-examination, Tung testified, “Anybody who is 

arrested for sexual assault, yes, they are looking out for themselves.” He stated that 

the detective implied he could leave if he admitted that he touched Samantha, and 

the detective also asked if Tung was doing anything to help himself. When asked 
No. 2021AP1705-CR

7

if he was “coming up again with other stories to help yourself now?” Tung replied, 

“Correct. That’s what I’m doing right now.”

¶11 In closing arguments, trial counsel asked the jury to look at the 

evidence. She argued:

[Tung] is having this trial because he never intended to touch 

her in a sexual way, and I think that’s clear when you look 

at everything okay?

....

[D]id this guy have the intent to touch this child in any sexual 

way? No. Did he touch her accidentally because he’s like 

in the middle of sleeping or whatever? Yeah. I think that 

she was cuddling. I think maybe he grabbed her, maybe he 

pulled her, but just like the [S]tate is saying, well, tights, you 

know, he dug in.

....

[H]e took the stand ... he wanted to let you guys know, man, 

I never did this, and then she says ... he was doing this .... 

Does it make sense?

....

I think they were cuddling, but [Tung] never, ever, ever 

intended to touch her or to get aroused by touching her.

¶12 The jury returned a guilty verdict and the court entered the judgment 

against Tung. At the sentencing hearing, Tung’s statement to the court was that he 

was “innocent of the charges[.]” The trial court imposed a sentence of fifteen years 

divided as seven years of initial confinement and eight years of extended 

supervision.

¶13 In April 2020, Tung moved for postconviction relief pursuant to WIS.

STAT.RULE 809.30, asserting that trial counsel was ineffective for pursuing a theory 

of defense that Tung prohibited her from using. In September 2021, the 
No. 2021AP1705-CR

8

postconviction court held an evidentiary hearing on Tung’s claims.4 Tung and his 

trial counsel both testified.

¶14 Tung testified that he met with trial counsel at least twice prior to trial. 

Tung recounted that they discussed the best defense strategy, and stated that trial 

counsel told Tung that she wanted to argue that he had no intent. Tung told trial 

counsel, “I understand where she’s coming from; but when I go and take the stand, 

I’m not gonna say that yes, I touched the child, but there was no intent.” Tung stated 

that he thought trial counsel understood his position, but during her opening 

statement at trial, she told the jury that he touched the girl in the genital area, but it 

was accidental and he had no intent to get sexual gratification. He stated that he 

made himself clear to trial counsel that he did not want to admit to the jury that he 

touched the child in her genital area.

¶15 Trial counsel testified that she, then a State Public Defender (SPD) 

attorney, along with an SPD investigator, met with Tung several times before trial. 

She did not recall discussing a trial strategy as much as discussing the facts—

including the police reports and text messages between Charles and Tung. She 

recalled that Tung stated he wanted to maintain his innocence. Tung had been 

sleeping and it was a matter of the State proving intent. She did not consider that 

she was conceding guilt by arguing one element of the charge could not be proven. 

She was aware that in Tung’s police custodial interview, he admitted he touched 

Samantha’s vagina. She stated that in a pretrial meeting, Tung admitted to trial 

 

4

 The Honorable Sandy A. Williams presided over Tung’s postconviction proceedings. 

Because Tung’s trial counsel had been appointed a judge in Milwaukee County Circuit Court, a 

judge from Ozaukee County conducted the proceedings. We refer to Judge Williams as the 

postconviction court. 
No. 2021AP1705-CR

9

counsel that he inadvertently touched Samantha’s vagina that day. She did not recall 

Tung telling her not to admit to the jury that he touched the girl in the vaginal area.

¶16 Trial counsel was asked why she conceded that Tung touched 

Samantha. She stated, “Because he had admitted to me that he had done it. He also 

had admitted to the father that he had had some touching to the child, and a—it 

would have been unprofessional for me to make a statement that was inconsistent 

with the evidence.” Upon questioning by postconviction counsel, trial counsel 

confirmed that her conversations with Tung in which he admitted to touching 

Samantha were not in evidence during the trial. The State asked trial counsel if 

ethically she could support a defense saying Tung did not touch Samantha, to which 

trial counsel replied, “no” and it would be “difficult.” 

¶17 The postconviction court denied Tung’s motion. The court found that 

in a judgment call over credibility between Tung and trial counsel, trial counsel was 

“more credible, in terms of being able to recall in detail what those meetings were 

about, and there was never any objection expressed about the defense.” The court 

stated that trial counsel “did not concede guilt in any way” and offered an 

explanation for the overwhelming evidence presented by the State—that there was 

no intent and therefore, no guilt. The postconviction court stated that “the closing 

argument was consistent with everything else, in terms of being able to explain all 

the other evidence that had been presented.” It concluded that the defense failed to 

meet its burden. 

¶18 Tung appeals. 
No. 2021AP1705-CR

10

DISCUSSION

¶19 Tung argues that structural error by trial counsel entitles him to a new 

trial. He argues that his constitutional right to maintain innocence as the objective 

of his defense was violated, pursuant to McCoy v. Louisiana, 138 S. Ct. 1500 

(2018). Additionally, he argues that his Sixth Amendment right to counsel was 

violated when the adversarial process broke down, pursuant to United States v. 

Cronic, 466 U.S. 648 (1984). “This court independently reviews whether 

deprivation of a constitutional right has occurred.” State v. Chambers, 2021 WI 13, 

¶13, 395 Wis. 2d 770, 955 N.W.2d 144. To understand why we reject each of his 

arguments, we begin with the law.5 

I. McCoy: defense objective and effective assistance

¶20 In McCoy, the United States Supreme Court held that a defendant has 

“[a]utonomy to decide that the objective of the defense is to assert innocence[.]” 

Id., 138 S. Ct. at 1508. McCoy’s attorney assessed the capital murder case against 

McCoy, who was accused of killing several members of McCoy’s estranged wife’s 

family, and concluded that a concession of guilt was McCoy’s best chance of 

avoiding the death penalty. Id. at 1505-06. McCoy’s attorney “told the jury there 

was ‘no way reasonably possible’ that they could hear the prosecution’s evidence 

 

5

 Tung rightfully does not argue ineffective assistance of counsel. The Supreme Court 

explained that “[b]ecause a client’s autonomy, not counsel’s competence, is in issue, we do not 

apply our ineffective-assistance-of-counsel jurisprudence,” under either Strickland v. Washington, 

466 U.S. 668 (1984), or United States v. Cronic, 466 U.S. 648 (1984). McCoy v. Louisiana, 138 

S. Ct. 1500, 1510-11 (2018). “To gain redress for attorney error, a defendant ordinarily must show 

prejudice”; however, “[v]iolation of a defendant’s Sixth Amendment-secured autonomy ranks as” 

structural error and is “not subject to harmless-error review.” Id. at 1511. However, a Cronic

claim may also trigger structural error. “[I]f counsel entirely fails to subject the prosecution’s case 

to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that 

makes the adversary process itself presumptively unreliable” and “‘no amount of showing of want 

of prejudice would cure it.’” Id., 466 U.S. at 659 (citation omitted). 
No. 2021AP1705-CR

11

and reach ‘any other conclusion than Robert McCoy was the cause of these 

individuals’ death.’” Id. at 1506. McCoy protested to the court, out of earshot of 

the jury, that his attorney was “‘selling [him] out’ by maintaining that McCoy 

‘murdered [his] family.’” Id. “McCoy testified in his own defense, maintaining his 

innocence and pressing an alibi difficult to fathom.” Id. at 1507. Nevertheless, in 

closing arguments on the guilt phase of the trial, McCoy’s attorney “reiterated that 

McCoy was the killer.” Id. In the penalty phase of the trial, McCoy’s attorney 

“urged mercy in view of McCoy’s ‘serious mental and emotional issues[.]’” Id.

¶21 The United States Supreme Court concluded in McCoy that the Sixth 

Amendment right to the effective assistance of counsel provides for just that—

assistance—and still grants a defendant a personal right to determine the defense. 

Id. at 1508. “Counsel, in any case, must still develop a trial strategy and discuss it” 

with the defendant. Id. at 1509. “If a client declines to participate in his defense, 

then an attorney may permissibly guide the defense pursuant to the strategy she 

believes to be in the defendant’s best interest.” Id. Nevertheless, when faced “with 

express statements of the client’s will to maintain innocence, however, counsel may 

not steer the ship the other way.” Id.

¶22 The Wisconsin Supreme Court explained that “to succeed on a McCoy

claim, the defendant must show that he or she ‘expressly assert[ed] that the objective 

of “his defence” is to maintain innocence of the charged criminal acts’ and the 

lawyer did not ‘abide by that objective and [overrode] it by conceding guilt.’” 

Chambers, 395 Wis. 2d 770, ¶20 (citations omitted, brackets in original). We reject 

Tung’s McCoy claim for two reasons: first, that trial counsel did not concede 

Tung’s ultimate guilt; and second, that Tung failed to show that trial counsel had 

express instructions to pursue an innocence defense and then failed to abide by that 

objective.
No. 2021AP1705-CR

12

¶23 First, our examination of the record supports that trial counsel did not 

concede Tung’s guilt during the trial. While Tung claims trial counsel “asserted 

that Tung had lied in his testimony,” the record does not reflect that to be a fair 

characterization of her closing argument. Trial counsel stated that Tung did not 

“have the intent to touch this child in any sexual way” and that he “touch[ed] her 

accidentally because he’s ... sleeping.” Trial counsel acknowledged that Tung said, 

“I never did this,” and managed to put it into the context of the defense’s position 

that there was no intent: it did “not make sense,” there was “cuddling,” but Tung 

“never ... intended” to touch Samantha or “to get aroused by touching her.” The 

postconviction court made a finding that there was no concession. The State also 

states that Tung’s description of the closing argument is misleading. 

¶24 Second, Tung failed to show that he instructed trial counsel to pursue 

an innocence defense objective. In the postconviction hearing, Tung asserted that 

he professed a defense objective to claim innocence. In contrast, trial counsel 

testified that Tung had explained to her that the touching was accidental and 

inadvertent. Further, trial counsel had evidence of two other instances of Tung 

admitting he touched Samantha—to Detective Wells in the police interview and to 

Charles in a text. Therefore, trial counsel testified that she formed a trial strategy 

based upon the “intent” element of the sexual assault charge. Moreover, trial 

counsel testified that she did not recall Tung saying anything to her about her 

opening statement, or Tung expressly telling her that she should not concede that he 

touched the girl in her vaginal area.6 The postconviction court found trial counsel 

 

6

 The record does not reflect that Tung protested to counsel during the trial about the 

strategy or that Tung attempted to protest to the court about the difference in objective. 
No. 2021AP1705-CR

13

credible in her testimony.7 Therefore, Tung’s McCoy claim fails on the first prong 

of the test provided in Chambers. He fails to show that he made express statements 

to trial counsel that his defense was absolute innocence to all parts of the charge. 

Accordingly, he also fails to show that trial counsel disobeyed his instruction. 

Therefore, we conclude that Tung has failed to show structural error through trial 

counsel impeding Tung’s right to control the defense objective under McCoy or a 

violation of his Sixth Amendment rights. 

II. Cronic: breakdown in the adversarial process

¶25 While Tung concedes that his claim does not fall neatly under the 

McCoy framework, he asserts that trial counsel abandoned zealous advocacy, which 

also implicates his right to effective counsel by breaking down the adversarial 

process, pursuant to Cronic. See id., 466 U.S. at 656-57.8 In Cronic, the United 

States Supreme Court examined the fundamental role of the effective assistance by 

counsel for a criminal defendant to receive a fair trial. Id. at 656. The Sixth 

Amendment requires that counsel act as an advocate for the defendant within an 

adversarial process—maintaining “the right of the accused to require the 

prosecution’s case to survive the crucible of meaningful adversarial testing.” Id. 

“[I]f the process loses its character as a confrontation between adversaries, the 

constitutional guarantee is violated.” Id. at 656-57. 

 

7

 The State argues that Tung has not challenged the postconviction court’s findings and 

credibility determinations; therefore, without an argument the findings are clearly erroneous, Tung 

does not dispute trial counsel’s testimony that prior to trial, Tung told trial counsel that he had 

touched Samantha.

8

 The State argues that Tung forfeited an argument based on Cronic, asserting that he 

failed to make the argument to the postconviction court and raises it for the first time on appeal. 

Although the record reflects that Cronic was not discussed during the postconviction evidentiary 

hearing, Tung referenced Cronic in his written postconviction motion. We are not persuaded that 

Tung raises a new argument on appeal. 
No. 2021AP1705-CR

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¶26 Tung admits that trial counsel did not expressly concede guilt in her 

closing argument; however, he asserts that she made the guilty verdict a “foregone 

conclusion” by telling the jury that Tung had lied in his trial testimony when he said 

that he never touched Samantha’s vagina. As we noted above, we reject Tung’s 

characterization of trial counsel’s closing argument. Trial counsel did not claim that 

Tung testified untruthfully or lied. 

¶27 Next, Tung contends that when defense counsel “contravenes her 

loyalty to the client, a criminal proceeding loses its character as a confrontation 

between adversaries.” To succeed under this theory, Tung would need to show that 

counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial 

testing[.]” Cronic, 466 U.S. at 659. The record does not support this argument. To 

find Tung guilty, the court instructed the jury that it had to find that Tung had 

“sexual contact” with Samantha, the touching was “intentional,” and Tung “acted 

with the intent to become sexually aroused or gratified.” Trial counsel vigorously 

contested the State’s case and maintained that the State could not prove beyond a 

reasonable doubt that “intentional touching ... for the purpose of ... sexually 

arousing or gratifying the defendant” had occurred. See WIS. STAT. § 948.01(5) 

(defining sexual contact). We conclude that the prosecution’s case was subject to 

adversarial testing. 

¶28 Tung asserts that trial counsel should have modified her closing 

argument to mirror Tung’s testimony during cross-examination. The record reflects 

in his testimony, Tung denied touching Samantha at all. However, our examination 

of the record also shows that Tung claimed that he lied to Detective Wells when he 

told the detective he touched the child. Tung also agreed that he was “coming up 

again with other stories to help [himself] now.”
No. 2021AP1705-CR

15

¶29 During the postconviction hearing, trial counsel raised ethical 

concerns about Tung’s testimony and her ability to advocate for his acquittal despite

his inconsistent testimony, as shown in this exchange between postconviction 

counsel and trial counsel: 

Q And even though you suspect that—personally suspect it 

might not be true, you still have an obligation to zealously 

advocate that testimony to the jury, right? 

A Yes and no. I have to zealously represent them, and I 

have to zealously advocate for them. But if they might—If 

they’re not truthful when they’re testifying, I don’t know if 

I have to align with that testimony.

¶30 Tung argues that trial counsel did not have proof in evidence that Tung 

was planning to perjure himself.9 With a client’s “unambiguous” “admission of 

intent to testify untruthfully,” defense counsel may then “substitute narrative 

questioning for the traditional question and answer format[.]” State v. McDowell, 

2004 WI 70, ¶43, 272 Wis. 2d 488, 681 N.W.2d 500. However, that is not the 

situation here—trial counsel was not aware of a plan to be untruthful and did not act 

to change her mode of examination. Tung’s substantially inconsistent testimony 

arrived during cross-examination. At that point, trial counsel knew that the jury had 

heard Detective Wells testify that Tung admitted he touched Samantha and had 

heard Charles testify about Tung’s text messages that did not deny the touching. 

 

9

 On appeal, Tung elaborates on the argument made in the postconviction stage that if trial 

counsel had knowledge that Tung would testify untruthfully, it would have triggered a change to 

narrative testimony instead of question and answer, pursuant to State v. McDowell, 2004 WI 70, 

¶43, 272 Wis. 2d 488, 681 N.W.2d 500. While the State argues that this argument is being raised 

for the first time on appeal, we see the extension of the line of questioning regarding defense 

attorney ethics in the evidentiary hearing. Postconviction counsel asked trial counsel, “Ethically 

speaking, the only time a defense lawyer is prohibited from allowing his or her client from testifying 

is when the client says, I’m gonna go up there and commit perjury, correct?” Trial counsel 

answered “Correct.” Although MacDowell was not referenced by name in the evidentiary hearing, 

the law and argument at issue are substantially the same. While we are not persuaded by Tung’s 

argument regarding MacDowell, we conclude it is not forfeited as a new argument on appeal. 
No. 2021AP1705-CR

16

Further, trial counsel had her personal knowledge that Tung told her he accidentally 

touched Samantha. 

¶31 Trial counsel was bound by the Wisconsin Supreme Court Rules of 

Professional Conduct for Attorneys, which among its strictures includes candor to 

the tribunal, under SCR 20:3.3 and that an attorney may not “assist a witness to 

testify falsely,” under SCR 20:3.4. “Although counsel must take all reasonable 

lawful means to attain the objectives of the client, counsel is precluded from taking 

steps or in any way assisting the client in presenting false evidence or otherwise 

violating the law.” Nix v. Whiteside, 475 U.S. 157, 166 (1986). In this situation, 

trial counsel had to decide how to proceed after Tung made statements during crossexamination that were inconsistent with the record and her personal knowledge of 

Tung’s description of his conduct. We cannot fault her decision to continue her trial 

strategy and focus on whether the State could prove the intent element of the charge. 

Trial counsel advocated for Tung and submitted the prosecution’s case to 

adversarial testing. See Cronic, 466 U.S. at 656. We conclude that trial counsel did 

not abandon her zealous advocacy of her client. Accordingly, we find no violation 

of Tung’s Sixth Amendment rights pursuant to Cronic. 

CONCLUSION

¶32 We conclude that Tung has failed to show structural error in his 

conviction through a violation of his Sixth Amendment right to effective counsel. 

He has failed to show that trial counsel abandoned her zealous advocacy of her 

client, either by implicating Tung’s constitutional right to maintain innocence as the 

objective of his defense, pursuant to McCoy, or by not holding the prosecution case 

to adversarial testing, pursuant to Cronic. Accordingly, we affirm his judgment of 

conviction and the denial of his motion for postconviction relief. 
No. 2021AP1705-CR

17

By the Court.—Judgment and order affirmed.

Recommended for publication in the official reports.